Article

Shamed

Victims of rape, sexual assault, and sexual abuse have long had to contend with victim blaming and victim shaming. While legal scholars have had fruitful and theoretically engaging debates regarding the validity and merits of shaming sanctions and shaming criminal defendants, there has been precious little written about the shame that victims face, let alone a recognition that their interaction with shame as both a social force and an emotion is multidimensional. In a previous piece titled “Ruined,” I examined the language judges use during sentencing hearings in sexual assault cases to describe victims, such as pronouncing them “broken,” “ruined,” or “destroyed.” This Article serves as a continuation of the inquiry I started in “Ruined” by expanding in focus. It seeks to differentiate between the related concepts of shame and stigma and explain why shaming of rape victims is so common. I propose a novel typology with which to examine a rape victim’s experience and separate the shame that victims are made to feel by the criminal adjudicative process, the shame victims are supposed to perform, and the shame victims are supposed to feel into discrete components, revealing that shame in relation to such victims is multilayered and much more complex than legal scholarship has made it out to be. Even outside of the law of rape and sexual assault, this typology has potential broader applicability in criminal law and other fields of legal practice.

I share my own experiences with each of these manifestations of shame to demonstrate the usefulness of my new typology. I also relate how I have felt ashamed to come forward with my story as a practicing attorney as well as my experiences of being shamed in the legal academy. I conclude, however, with a note of optimism, reflecting on the positive things to have come with my very public self-disclosure of being a rape and sexual abuse victim and hoping to encourage others to employ personal narrative and auto-ethnographic methods in their own scholarship, as well.

Introduction

In the Getty Center in the Brentwood neighborhood of Los Angeles hangs a depiction of Lucretia painted by Italian Baroque painter Artemisia Gentileschi sometime around 1627.1 1.Artemisia Gentileschi, Lucretia, c. 1627, oil on canvas, 92.9 × 72.7 cm, Getty Center, https://www.getty.edu/art/collection/object/109Q8G [https://perma.cc/BT2Q-VJQR].Show MoreAs depicted by Gentileschi, Lucretia is obviously a noblewoman of some sort. She wears pearls not just as earrings but strung throughout her hair. Her shoulders are draped in a diaphanous, light white fabric that appears to be tulle. She gazes to the upper right corner of the frame with a plaintive look on her face. In her right hand, she holds a dagger with a silver blade. The end of the dagger’s hilt appears to be gold, ending in the small figure of an animal, maybe a rabbit. She points the dagger to her chest. According to legend, Lucretia, the faithful wife of Lucius Tarquinius Collatinus, was raped by Sextus Tarquinius, the son of the King of Rome.2 2.Lucretia, Getty, https://www.getty.edu/art/collection/object/109Q8G [https://perma.cc/BT‌2Q-VJQR] (last visited Nov. 11, 2024).Show MoreBefore stabbing herself to death, she “called on her father and her husband [to exact] vengeance” for this wrong.3 3.Id.Show MoreThe legend goes that anger over Lucretia’s death led to the fall of the Roman monarchy and the establishment of the Roman Republic.4 4.Virginia Gorlinski, Lucretia, Encyc. Britannica, https://www.britannica.com/topic/Lucreti‌a-ancient-Roman-heroine [https://perma.cc/TJE9-VXGN] (last visited Nov. 11, 2024).Show More

Artemisia Gentileschi, Lucretia (c. 1627)

A painting of a person holding a knife AI-generated content may be incorrect.

There have been many depictions of Lucretia over many hundreds of years.5 5.See Natasha H. Arora, Lucretia’s Many Bodies Through the Ages, Art & Object (Dec. 15, 2022), https://www.artandobject.com/news/lucretias-many-bodies-through-ages [https://per‌ma.cc/BS2X-LKTW] (discussing various artistic depictions of Lucretia).Show MoreYet this depiction of her by Gentileschi is the one that I, as a rape victim, have always found most relatable. It focuses exclusively on Lucretia and her anguish rather than on the political ramifications of her death. Perhaps this empathy with Lucretia’s plight makes sense on the part of the artist, given that Gentileschi was raped by the artist Agostino Tassi when she was seventeen.6 6.Mary O’Neill, Artemisia’s Moment, Smithsonian Mag. (May 2002), https://www.smithso‌nianmag.com/arts-culture/artemisias-moment-62150147/ [https://perma.cc/H6B8-GQRV].Show MoreWhile Tassi initially promised to marry Gentileschi, he later refused, leading Gentileschi to report what happened to her father, Orazio.7 7.Joseph Wm. Slap, Artemisia Gentileschi: Further Notes, 42 Am. Imago 335, 337 (1985).Show MoreAt the time, “rape was viewed more as a crime against a family’s honor than as a violation of a woman,” and it was Orazio, rather than Gentileschi herself, who pressed charges against Tassi.8 8.O’Neill, supra note 6.Show MoreThe trial took more than half a year.9 9.Elizabeth S. Cohen, The Trials of Artemisia Gentileschi: A Rape as History, 31 Sixteenth Century J.47, 49 (2000). This does not mean, however, that it was a trial in the sense with which we would be familiar today. Rather, “[t]he trial dragged on through seven months of intermittent interrogations and legal maneuvers. During at least the first six weeks, there continued private negotiations toward a settlement ending in marriage.” Id.Show MoreGentileschi testified at the trial while tortured, purportedly to assure the truthfulness of her testimony.10 10.O’Neill, supra note 6.Show MoreAs she was put to thumbscrews, she exclaimed to Tassi, “This is the ring you give me, and these are your promises[!]”11 11.Slap, supra note 7, at 337 (quoting Rudolf Wittkower & Margot Wittkower, Born Under Saturn: The Character and Conduct of Artists 162 (1963)).Show More

Perhaps to today’s reader, both stories—Lucretia’s and Gentileschi’s—sound remote and archaic. There is, however, a long association between those attempting suicide and those reporting histories of sexual assault.12 12.Jonathan R.T. Davidson, Dana C. Hughes, Linda K. George & Dan G. Blazer, The Association of Sexual Assault and Attempted Suicide Within the Community, 53 Archives Gen. Psychiatry 550, 550 (1996).Show MoreBy one estimate, rape victims are 4.1 times more likely to contemplate suicide and are 13 times more likely to attempt suicide compared to non-victims.13 13.Dean G. Kilpatrick, Christine N. Edmunds & Anne Seymour, Nat’l Victim Ctr. & Crime Victims Rsch. & Treatment Ctr., Rape in America: A Report to the Nation 7 (1992).Show MoreMoreover, while victims no longer face physical torture at trial, they may still be tormented in other ways. For example, if victims do not want to testify, they can be threatened with jail time until they do.14 14.See Sexual Assault Kit Initiative & RTI Int’l, “Next-Level” Compulsion of Victim Testimony in Crimes of Sexual Violence Against Adults: Prosecutorial Considerations Before Using Bench Warrants/Body Attachments and Material Witness Warrants 2–3 (2022), https://sakitta.org/toolkit/docs/14451SAKINextLevelComplsnVctmTstmny.pdf [https://perm‌a.cc/T5ZT-Z8JR] (discussing the challenges victims of sexual assault may face if held in contempt for not complying with an order to testify).Show MoreThose that do testify risk being discredited or degraded and may have their experiences essentialized.15 15.See infra Part II.Show More

Victims of sexual assault continue to be shamed in a multitude of ways today. This Article introduces a typology of shame to consider when thinking about how victims are treated by the legal system and subjected to shaming through those mechanisms: the shame that victims feel or are made to feel by both investigations and proceedings in court, the shame that victims are supposed to perform for others, and the shame that victims are supposed to feel.

The title of my previous article addressing the language used by judges during sentencing in sexual assault cases is “Ruined.”16 16.Maybell Romero, “Ruined,” 111 Geo. L.J. 237 (2022).Show MoreThe reason there are quotation marks around that title is the basis for the argument of the paper itself; while judges may wish to pronounce rape victims “ruined,” it is the victims themselves who should be allowed to determine and pronounce their own fate.17 17.See generally id. (arguing that a judge’s pronouncement of a victim as “ruined” is stigmatizing and perpetuates myths about victimhood).Show MoreBut with the title of this paper, Shamed, I dispense with those quotation marks, not because victims should be ashamed of the harm that has been done to them, but because attempts to shame victims are real. They are pervasive. And they are harmful, even when such attempts are not immediately apparent. Shaming of sexual assault victims exists in police investigations, courtrooms, interpersonal relationships, and even within written laws. Not only have I been shamed, but I have shamed others in the course of prosecuting sexual assault cases. As Robert Cover has explained, “interpretive act[s]” on the part of judges are themselves “violent deed[s]” that both “authorize[] and legitim[ize]” acts of violence.18 18.See Robert M. Cover, Violence and the Word, 95 Yale L.J. 1601, 1614 (1986).Show MoreLegal interpretation “depends upon the social practice of violence” to be effective.19 19.Id. at 1613.Show More

This Article considers the existence of shame and its operationalization in the law in relation to rape and sexual assault. Shame itself is its own social sanction, and shaming is its own social practice. While judges and perhaps prosecutors attempt to use shame against sexual offenders as a legal sanction, shame is, primarily, a social sanction. Shame itself is about enforcing social norms, and so many of those norms enshrined in the law and larger culture are harmful and regressive when it comes to sexual assault.

I intend to consider shame—the concept and its operation—more closely in this Article at different junctures in the law and in society than I considered in “Ruined.” While other scholarship has also examined shame as well as shaming sanctions, this Article is unique in relating many of my own experiences of being shamed and wielding shame as a child, as a young female prosecutor, and especially, as a law professor and legal scholar. From this perspective, I also examine different forms of sexual assault shaming in legal professional spheres.

At multiple prosecution trainings early in my career, I and everyone else in the audience were informed that people (usually, specifically women) who have gone through sexual assault should never work on sexual assault cases because they would be too “biased” and would lack the objectivity to do the job well—that somehow victims of sexual assault would be overtaken by their emotions to the point of rendering them ineffective.20 20.When using the word “ineffective,” I mean it in a much more general sense, rather than as a specific reference to ineffective assistance of counsel as discussed in Strickland v. Washington, 466 U.S. 668 (1984), and its progeny.Show MoreIn an environment like that one, I certainly did not feel free to come forward with my story for fear that colleagues, law enforcement officers with whom I had to work, and maybe even other victims would judge me as not professionally competent to work on rape and sexual assault cases. When Kim Foxx, former Cook County, Illinois, State’s Attorney (the equivalent office of an elected District Attorney), came forward as a victim of child sexual abuse21 21.Carol Felsenthal, Kim Foxx Wants to Tell You a Story, Chi. Mag. (Dec. 10, 2018, 12:22 PM), https://www.chicagomag.com/chicago-magazine/january-2019/kim-foxx-wants-t‌o-tell-you-a-story/ [https://perma.cc/ZGE7-JDKH].Show Moreand rape as a college student,22 22.Carol Thompson & Dorothy Tucker, Kim Foxx Calls Findings Showing as Many as 1 in 3 Black Women in 2022 Were Victims of Crime “Jarring,” CBS News (Dec. 4, 2023, 10:27 PM), https://www.cbsnews.com/chicago/news/kimberly-foxx-findings-black-women-c‌rime-jarring/ [https://perma.cc/V25P-JVH2].Show More her objectivity and professional competency were privately questioned in a way unlikely to have happened if she had been the victim of a less stigmatized crime like burglary. Coming forward as a victim of sexual assault seems to flout many long-established trappings of respectability in the legal profession.

I have also experienced this professional shaming to some extent after writing, publishing, and presenting my recent article, “Ruined.” While the vast majority of the feedback that I have received has been encouraging and substantive, some of it has been very similar to what I heard as a prosecutor working on sexual assault cases. For example, I have had people praise my article, then abruptly ask if it was embarrassing to have it appear online or in print. I had a fellow law professor at a regional workshop critique the work on grounds that he felt he could not critique it at all, contending that I had rendered my arguments unassailable from normal inquiry because I had shared my story. In that sense, he performed a very similar maneuver to that which I heard in prosecution trainings and to that which Kim Foxx has faced—arguing that my experience has somehow rendered me unable to do my job well or even properly, and that it might have been better if I had never talked about it at all. Yet another couple of professors have told me that they refused to read the piece because they found the premise of another law professor sharing such a story too “uncomfortable.”

Law professors do not like being uncomfortable. Sure, they may enjoy being intellectually challenged; they may even enjoy arguing with each other over philosophical differences, interpretive differences, or ideological conflicts generally. Some of us may even enjoy debating the nature of legal scholarship—what it is, what it can be, and what it should be. But we do not like being uncomfortable, which is how I think much of my recent scholarship makes people feel. It is not meant to be enjoyable or easy, but rather to embrace the tradition of Martha Fineman and her approach to having “uncomfortable conversations.”23 23.Martha Albertson Fineman, Introduction: Feminist and Queer Legal Theory, in Feminist and Queer Legal Theory: Intimate Encounters, Uncomfortable Conversations 1, 1 (Martha Albertson Fineman, Jack E. Jackson & Adam P. Romero eds., 2009).Show MoreThis is the sort of discomfort that has led some law professors to stop teaching rape and sexual assault law in their first-year criminal law courses.24 24.Jeannie Suk Gersen, The Trouble with Teaching Rape Law, New Yorker (Dec. 15, 2014), https://www.newyorker.com/news/news-desk/trouble-teaching-rape-law.Show MoreThese uncomfortable conversations, however, need to be had, and I think by not having them, we do our students, the legal profession, and even ourselves a great disservice.

Part I of this Article starts by defining (or attempting to define) shame while distinguishing it from the related concept of stigma. It answers questions regarding why people engage in shaming victims, specifically those who have been raped or sexually assaulted. It also presents historical examples of shaming to demonstrate that the shame that is heaped upon victims today is of a long historical, cultural, and legal lineage. Not only does Part I explore examples of this shaming in the law, but it also offers a sampling of examples from literature, art, and popular culture to show just how pervasive this phenomenon is. Part II examines current ways that victims are shamed specifically by the criminal legal system, introducing a typology of shame and shaming that is the first of its kind in legal scholarship. Part III examines shaming in professional settings, particularly in the legal profession and in legal academia. It reflects on my experiences writing and publishing “Ruined” and scrutinizes what certain pedagogical choices in the criminal law classroom communicate to students. In that sense, it looks at shame in the larger legal and law school cultural environment. The Article closes by advocating for having the uncomfortable conversations that can push back against the shaming with which I and this Article take issue.

  1.  Artemisia Gentileschi, Lucretia, c. 1627, oil on canvas, 92.9 × 72.7 cm, Getty Center, https://www.getty.edu/art/collection/object/109Q8G [https://perma.cc/BT2Q-VJQR]. ↑
  2.  Lucretia, Getty, https://www.getty.edu/art/collection/object/109Q8G [https://perma.cc/BT‌2Q-VJQR] (last visited Nov. 11, 2024). ↑
  3.  Id. ↑
  4.  Virginia Gorlinski, Lucretia, Encyc. Britannica, https://www.britannica.com/topic/Lucreti‌a-ancient-Roman-heroine [https://perma.cc/TJE9-VXGN] (last visited Nov. 11, 2024). ↑
  5.  See Natasha H. Arora, Lucretia’s Many Bodies Through the Ages, Art & Object (Dec. 15, 2022), https://www.artandobject.com/news/lucretias-many-bodies-through-ages [https://per‌ma.cc/BS2X-LKTW] (discussing various artistic depictions of Lucretia). ↑
  6.  Mary O’Neill, Artemisia’s Moment, Smithsonian Mag. (May 2002), https://www.smithso‌nianmag.com/arts-culture/artemisias-moment-62150147/ [https://perma.cc/H6B8-GQRV]. ↑
  7.  Joseph Wm. Slap, Artemisia Gentileschi: Further Notes, 42 Am. Imago 335, 337 (1985). ↑
  8.  O’Neill, supra note 6. ↑
  9.  Elizabeth S. Cohen, The Trials of Artemisia Gentileschi: A Rape as History, 31 Sixteenth Century
    J.

    47, 49 (2000). This does not mean, however, that it was a trial in the sense with which we would be familiar today. Rather, “[t]he trial dragged on through seven months of intermittent interrogations and legal maneuvers. During at least the first six weeks, there continued private negotiations toward a settlement ending in marriage.” Id. ↑

  10.  O’Neill, supra note 6. ↑
  11.  Slap, supra note 7, at 337 (quoting Rudolf Wittkower & Margot Wittkower, Born Under Saturn: The Character and Conduct of Artists 162 (1963)). ↑
  12.  Jonathan R.T. Davidson, Dana C. Hughes, Linda K. George & Dan G. Blazer, The Association of Sexual Assault and Attempted Suicide Within the Community, 53 Archives Gen. Psychiatry 550, 550 (1996). ↑
  13.  Dean G. Kilpatrick, Christine N. Edmunds & Anne Seymour, Nat’l Victim Ctr. & Crime Victims Rsch. & Treatment Ctr., Rape in America: A Report to the Nation 7 (1992). ↑
  14.  See Sexual Assault Kit Initiative & RTI Int’l, “Next-Level” Compulsion of Victim Testimony in Crimes of Sexual Violence Against Adults: Prosecutorial Considerations Before Using Bench Warrants/Body Attachments and Material Witness Warrants 2–3 (2022), https://sakitta.org/toolkit/docs/14451SAKINextLevelComplsnVctmTstmny.pdf [https://perm‌a.cc/T5ZT-Z8JR] (discussing the challenges victims of sexual assault may face if held in contempt for not complying with an order to testify). ↑
  15.  See infra Part II. ↑
  16.  Maybell Romero, “Ruined,” 111 Geo. L.J. 237 (2022). ↑
  17.  See generally id. (arguing that a judge’s pronouncement of a victim as “ruined” is stigmatizing and perpetuates myths about victimhood). ↑
  18.  See Robert M. Cover, Violence and the Word, 95 Yale L.J. 1601, 1614 (1986). ↑
  19.  Id. at 1613. ↑
  20.  When using the word “ineffective,” I mean it in a much more general sense, rather than as a specific reference to ineffective assistance of counsel as discussed in Strickland v. Washington, 466 U.S. 668 (1984), and its progeny. ↑
  21.  Carol Felsenthal, Kim Foxx Wants to Tell You a Story, Chi. Mag. (Dec. 10, 2018, 12:22 PM), https://www.chicagomag.com/chicago-magazine/january-2019/kim-foxx-wants-t‌o-tell-you-a-story/ [https://perma.cc/ZGE7-JDKH]. ↑
  22.  Carol Thompson & Dorothy Tucker, Kim Foxx Calls Findings Showing as Many as 1 in 3 Black Women in 2022 Were Victims of Crime “Jarring,” CBS News (Dec. 4, 2023, 10:27 PM), https://www.cbsnews.com/chicago/news/kimberly-foxx-findings-black-women-c‌rime-jarring/ [https://perma.cc/V25P-JVH2]. ↑
  23.  Martha Albertson Fineman, Introduction: Feminist and Queer Legal Theory, in Feminist and Queer Legal Theory: Intimate Encounters, Uncomfortable Conversations 1, 1 (Martha Albertson Fineman, Jack E. Jackson & Adam P. Romero eds., 2009). ↑

  24.  Jeannie Suk Gersen, The Trouble with Teaching Rape Law, New Yorker (Dec. 15, 2014), https://www.newyorker.com/news/news-desk/trouble-teaching-rape-law. ↑

Regulating Hidden AI Authorship

With the rapid emergence of high-quality generative artificial intelligence (“AI”), some have advocated for mandatory disclosure when the technology is used to generate new text, images, or video. But the precise harms posed by nontransparent uses of generative AI have not been fully explored. While the use of the technology to produce material that masquerades as factual (“deepfakes”) is clearly deceptive, this Article focuses on a more ambiguous area: the consumer’s interest in knowing whether works of art or entertainment were created using generative AI.

In the markets for creative content—fine art, books, movies, television, music, and the like—producers have several financial reasons to hide the role of generative AI in a work’s creation. Copyright law is partially responsible. The Copyright Office and courts have concluded that only human-authored works are copyrightable, meaning much AI-generated content falls directly into the public domain. Producers thus have an incentive to conceal the role of generative AI in a work’s creation because disclosure could jeopardize their ability to secure copyright protection and monetize the work.

Whether and why this obfuscation harms consumers is a different matter. The law has never required disclosure of the precise ways a work is created; indeed, failing to publicly disclose the use of a ghostwriter or other creative assistance is not actionable. But AI authorship is different for several reasons. There is growing evidence that consumers have strong ethical and aesthetic preferences for human-created works and understand the failure to disclose AI authorship as deceptive. Moreover, hidden AI authorship is normatively problematic from the perspective of various theories of artistic value. Works that masquerade as human-made destabilize art’s ability to encourage self-definition, empathy, and democratic engagement, turning all creative works into exclusively entertainment-focused commodities.

This Article also investigates ways to facilitate disclosure of the use of generative AI in creative works. Industry actors could be motivated to self-regulate, adopting a provenance-tracking or certification scheme. And Federal Trade Commission (“FTC”) enforcement could provide some additional checks on the misleading use of AI in a work’s creation. Intellectual property law could also help incentivize disclosure. In particular, doctrines designed to prevent the overclaiming of material in the public domain—such as copyright misuse—could be used to raise the financial stakes of failing to disclose the role of AI in a work’s creation.

Introduction

When Marvel Studios’ big-budget series, Secret Invasion, premiered in June 2023, most viewers did not give a second thought to the show’s opening credits, which featured angular alien faces, a toothless Samuel L. Jackson, and swirling green cityscapes. Shortly after the show premiered, however, director and executive producer Ali Salim made an unusual admission: the credit sequence’s visuals had been generated using artificial intelligence (“AI”).1 1.Zosha Millman, Yes, Secret Invasion’s Opening Credits Scene Is AI-Made—Here’s Why, Polygon (June 22, 2023, 7:16 PM), https://www.polygon.com/23767640/ai-mcu-secret-invas‌ion-opening-credits [https://perma.cc/5WPN-93TY].Show More Public outcry was swift. Many criticized the use of generative AI by a wealthy studio as “unethical,” especially in light of Hollywood labor disputes driven by the possible effects of generative AI on acting and writing jobs.2 2.See Angela Watercutter, Marvel’s Secret Invasion AI Scandal Is Strangely Hopeful, Wired (June 23, 2023, 9:00 AM), https://www.wired.com/story/marvel-secret-invasion-artificial-int‌elligence/.Show More Others argued that Marvel’s use of AI was lazy, yielding images devoid of artistic merit.3 3.See Dani Di Placido, Marvel’s AI-Generated ‘Secret Invasion’ Sequence Sparks Backlash, Forbes (June 23, 2023, 11:47 AM), https://www.forbes.com/sites/danidiplacido/2023/06/21/t‌he-big-backlash-against-marvels-secret-invasion-explained/?sh=2ef04c17344e.Show More The criticism ultimately prompted Marvel to walk back its admission, explaining that “AI is just one tool among the array of tool sets our artists used. No artists’ jobs were replaced by incorporating these new tools; instead, they complemented and assisted our creative teams.”4 4.Carolyn Giardina, ‘Secret Invasion’ Opening Using AI Cost “No Artists’ Jobs,” Says Studio That Made It, Hollywood Rep. (June 21, 2023, 8:12 PM), https://www.hollywoodrepo‌rter.com/tv/tv-news/secret-invasion-ai-opening-1235521299/ [https://perma.cc/3DTD-U4‌6W].Show More

With the dramatic arrival of high-quality generative AI systems,5 5.For a full discussion of what I mean by “generative AI,” see infra Section I.A.Show More scholars and policy-makers have begun debating the potential harms posed by the technology’s many possible applications. Much of this debate has centered on generative AI’s ability to create materials that masquerade as factual—in particular, false photorealistic images and audiovisual content, commonly known as “deepfakes”—which can harm individual reputations or further misinformation that undermines public trust.6 6.See generally Lisa Macpherson, Lies, Damn Lies, and Generative Artificial Intelligence: How GAI Automates Disinformation and What We Should Do About It, Pub. Knowledge (Aug. 7, 2023), https://publicknowledge.org/lies-damn-lies-and-generative-artificial-intellige‌nce-how-gai-automates-disinformation-and-what-we-should-do-about-it/ [https://perma.cc/9‌BNL-QN9S] (discussing the potential harm to the integrity of news through the use of generative AI); Adam Satariano & Paul Mozur, The People Onscreen Are Fake. The Disinformation Is Real, N.Y. Times (Feb. 7, 2023), https://www.nytimes.com/2023/02/07/tec‌hnology/artificial-intelligence-training-deepfake.html (describing how deepfakes make it difficult to separate reality from forgeries and enable the spread of propaganda by foreign governments); Todd C. Helmus, Artificial Intelligence, Deepfakes, and Disinformation: A Primer, RAND Corp. (July 6, 2022), https://www.rand.org/pubs/perspectives/PEA1043-1.ht‌ml [https://perma.cc/HD55-62L5] (observing that, in an increasingly polarized and fact-resistant political climate, deepfakes pose a potent threat). See also Council Regulation 2024/1689, art. 134, 2024 O.J. (L) 1, 34 (EU) (requiring creators of deepfakes to disclose use of AI).Show More But the Secret Invasion controversy illustrates an underexplored dimension of the lack of transparency in many uses of generative AI: Are consumers also deceived by nonfactual, AI-generated creative works that masquerade as human-made? Put another way, does hidden AI “authorship”—that is, the undisclosed use of AI to produce expression that we generally consider to be within the purview of human creators7 7.As discussed below, AI cannot be an author for legal purposes, so when I say “AI authorship,” I refer to situations in which AI has accomplished the creative work that we generally associate with human authorship. See infra Subsections I.B.2, II.C.2.Show More—pose harm to the public?

This Article provides the first comprehensive treatment of this question, as well as the problem of hidden AI authorship more generally. In so doing, this Article makes three contributions. The first contribution is descriptive: the Article examines how and why producers of commercial creative works—visual art, books, television, music, films, and more—might choose to hide the role of generative AI in the production of new content. Though not immediately obvious, this phenomenon is deeply intertwined with intellectual property law, and copyright law in particular. As copyright decision-makers increasingly find that AI-generated works are largely unprotectable, producers have an incentive to hide their use of the technology. The second contribution is normative: the Article argues that the hiding of AI authorship indeed poses harm to consumers, albeit a less straightforward form of harm than the clear problems posed by deceptive deepfakes. This harm must be understood by examining the strong evidence that many consumers prefer human-created works of art and entertainment, as well as the broader social significance of human authorship in art’s ability to foster self-definition, empathy, and political engagement. The third contribution is prescriptive: the Article identifies various regulatory options, including existing consumer protection and intellectual property law regimes, that could be used to encourage greater transparency among the sellers of AI-generated content, enabling better informed consumer choice.

How might generative AI come to be frequently, but nontransparently, used to create new works of art and entertainment? As Part I explores, this problem is already emerging. Generative AI is quickly being incorporated into content creation, leading large content producers to encounter a dilemma like the one faced by Marvel: whether or not to disclose the role of the technology in a work’s creation. As the creators of Secret Invasion discovered, many consumers seem to bristle at the use of the technology. Indeed, recent empirical research suggests that many consumers consider “AI-generated” works inferior, even if they cannot tell from the work itself that AI had a role in its creation.8 8.See infra Subsection I.B.1; see, e.g., Lucas Bellaiche et al., Humans Versus AI: Whether and Why We Prefer Human-Created Compared to AI-Created Artwork, 8 Cognitive Rsch., 2023, at 1, 3 (observing that, across multiple artistic mediums, study participants preferred art labelled “human-created” over art labelled “AI-created”).Show More This yields a clear financial incentive to hide the AI provenance of a work from the public.

Current trends in copyright law compound producers’ incentives to hide their use of generative AI. It is black-letter law that a work created by a nonhuman is ineligible for copyright protection.9 9.See, e.g., Naruto v. Slater, 888 F.3d 418, 426 (9th Cir. 2018) (monkey that took “selfie” photos could not claim copyright for lack of standing); see also infra Subsection I.B.2 (discussing limits on copyright protections for works not produced by human beings).Show More Courts and the Copyright Office10 10.The Copyright Office is a regulatory body housed in the Library of Congress that is responsible for registering new works. See infra Subsection I.B.2.Show More have emphasized the importance of “elements of human creativity” when assessing whether an AI-generated work can be registered, such as human-made decisions about how to organize and structure AI-generated material in a final work.11 11.See, e.g., Letter from Robert J. Kasunic, U.S. Copyright Off. Rev. Bd., to Van Lindberg, Taylor Eng. Duma LLP, Zarya of the Dawn (Registration # VAu001480196), at 5–8 (Feb. 21, 2023), https://www.cop‌yright.gov/docs/zarya-of-the-daw‌n.pdf [https://perma.cc/X54U-MQ‌4F] (finding that AI-generated images in a comic book were unprotectable but the comic book could still be thinly protected as a compilation).Show More For content producers, this means that highlighting the role of generative AI in a work’s production can compromise efforts to achieve copyright registration.12 12.See, e.g., Thaler v. Perlmutter, 687 F. Supp. 3d 140, 149–50 (D.D.C. 2023) (upholding denial of copyright registration where “the record designed by plaintiff from the outset of his application for copyright registration . . . [showed] the absence of any human involvement in the creation of the work,” precluding copyrightability for AI-generated image); see also infra Subsection I.B.2 (describing instances in which acknowledging the role of AI in a work’s creation foreclosed copyright protection).Show More Failure to obtain protection essentially means that new content immediately falls into the public domain and cannot be monetized. Thus, if trends in the law continue in their likely direction, content producers will increasingly try to hide the role of AI in new creative works to ensure such works remain protectable.13 13.Disclosure to the Copyright Office and public disclosure are interrelated. The Copyright Office has begun listing registrations that explicitly state whether a work is a product of generative AI (noting that the AI-produced elements are unprotectable). These registrations are easily publicly searchable. See infra Section I.C.Show More

Should this obfuscation be considered a problem? After all, if a consumer enjoys a work like the Secret Invasion credit images, does it matter whether they know that work was produced using generative AI? Part II addresses this question, arguing that consumers seem to have a range of “process preferences”14 14.See Douglas A. Kysar, Preferences for Processes: The Process/Product Distinction and the Regulation of Consumer Choice, 118 Harv. L. Rev. 525, 529 (2004) (examining how “consumer preferences may be heavily influenced by information regarding the manner in which goods are produced”).Show More—that is, preferences that relate to how a work was created, rather than just the work itself—that implicate the use of generative AI. One issue is ethical: consumers may prefer human-created works because of ethical concerns over AI supplanting human labor.15 15.See infra Subsection II.A.1.Show More Another issue is aesthetic: as showcased in old debates regarding the use of “mechanical reproduction” in art, human creation can confer an element of authenticity on a creative work that a machine-generated work lacks.16 16.See infra Subsection II.A.2.Show More Finally, consumers have deep-seated connections to specific artists, born out of a sense of fandom, which are undermined by the more specific example of AI-generated works that mimic an artist’s voice or style.17 17.See infra Subsection II.A.3.Show More Considering these preferences, obscuring the role of generative AI in a work’s creation may prevent a consumer from making an informed decision about whether to consume it.

But just because consumers have these preferences does not mean the law must respect them.18 18.See infra Part II (examining difficulties of determining whether consumer preferences should give rise to regulatory action).Show More Part II thus also provides a separate normative case for why consumers who care about human authorship should be taken seriously. As aesthetic and ethical theorists have argued, authorship and readership19 19.By “readership,” I mean the experience of engaging with a work of art or entertainment. See infra Section II.B.Show More are fundamentally social activities; through art, the public can engage in ongoing “dialogic” processes of self-definition, ethical development, and political engagement. Novelist and journalist Jay Caspian Kang has recently put it more plainly: “[T]he reason we read books and listen to songs and look at paintings is to see the self in another self, or even to just see what other people are capable of creating.”20 20.Jay Caspian Kang, What’s the Point of Reading Writing by Humans?, New Yorker (Mar. 31, 2023), https://www.newyorker.com/news/our-columnists/whats-the-point-of-reading-writ‌ing-by-humans; see also infra note 199 (surveying other writers’ similar perspectives).Show More Thus, even if, as some have argued, the author’s “intent” lacks significance,21 21.See infra Subsection II.B.1 (noting that postmodern theorists have questioned the importance of the individual author). See generally Roland Barthes, The Death of the Author, in Image, Music, Text 142 (Stephen Heath trans., 1977) (criticizing literary critics’ preoccupation with individual authors and instead emphasizing the importance of readers as recipients and interpreters of literary texts).Show More the author’s and reader’s basic shared humanness can be essential to allowing art to play a meaningful social and ethical function. The undisclosed use of generative AI in authoring a work22 22.Importantly, I distinguish between truly “authoring” a work—that is, generating something that is at the creative heart of the work—and using AI in a merely assistive role. Copyright’s doctrinal distinction between these two concepts corresponds well to this normative distinction. See infra Subsection II.C.2. I also explain why the use of a human ghostwriter does not pose the same problems as undisclosed AI authorship. See infra Subsection II.C.1.Show More fundamentally destabilizes this dialogue between author and reader, robbing art of its social value and turning it into an exclusively entertainment-focused commodity.23 23.See infra Subsection II.B.2 (exploring how lack of knowledge regarding a work’s provenance forces consumers to exclusively engage with works of art on market-based, rather than social, terms).Show More The argument here is not that AI authorship is inherently immoral; indeed, AI might yield a range of works that consumers enjoy. Rather, it is that such use must be disclosed in order to allow consumers to choose whether and on what terms they wish to engage with a work.

The obvious solution to the problem of undisclosed AI authorship is to provide consumers with information about a work’s provenance, so that they can make an informed choice. Part III explores various regulatory options for fostering transparency, examining their benefits and shortcomings. An affirmative disclosure regime could come about through industry self-regulation; if it is true that some consumers prefer human-made works, the market would logically step in to provide this information.24 24.See infra Subsection III.A.1 (examining private ordering solutions, such as provenance tracking and a certification regime).Show More A legislative transparency mandate would also—and more thoroughly—accomplish this task.25 25.See infra Subsection III.A.2.Show More In lieu of a comprehensive affirmative disclosure regime, the FTC could also target specific instances in which producers deceptively omit information about a work’s origins so as to mislead consumers.26 26.See infra Section III.B.Show More

An additional, and perhaps more politically feasible,27 27.See infra Section III.C (exploring barriers to legislation and FTC enforcement).Show More set of options is offered by existing intellectual property law. Such an approach would look to IP’s existing doctrines as a way of forcing information, making it costlier for producers to hide the fact that they used generative AI to produce works. In particular, litigants could take advantage of the often-ignored doctrine of copyright misuse to police those who assert that an entire work was human-created, when, in fact, it was a product of AI. Such assertions should fall within one of the categories of copyright misuse: the overclaiming of material that is in the public domain.28 28.See infra Subsection III.C.1; see also infra Subsection I.B.2 (noting that AI-generated material is inherently in the public domain due to lack of authorship, rendering many AI-derived works unprotectable or only thinly protectable).Show More Using the copyright misuse doctrine in litigation would raise the financial risks of surreptitiously using AI-generated materials, incentivizing rightsholders to disclose (and disclaim) this content.29 29.See infra Subsection III.C.1. In particular, a copyright misuse finding prevents a rightsholder from enforcing even legally protectable aspects of their work, rendering the work completely uncopyrightable and essentially valueless. See infra Subsection III.C.1.Show More Trademark law and the right of publicity could also play a role in raising the financial stakes of nontransparency. For the specific subset of AI-generated works that mimic a human artist’s voice or likeness,30 30.See infra Subsection II.A.3 (discussing examples such as “fake Drake”).Show More trademark and the right of publicity provide causes of action that could subject producers and distributors to damages.31 31.See infra Subsection III.C.2.Show More In combination, these various tools could ideally achieve a world in which information about most works’ provenance is readily accessible to consumers.

  1.  Zosha Millman, Yes, Secret Invasion’s Opening Credits Scene Is AI-Made—Here’s Why, Polygon (June 22, 2023, 7:16 PM), https://www.polygon.com/23767640/ai-mcu-secret-invas‌ion-opening-credits [https://perma.cc/5WPN-93TY]. ↑

  2.  See Angela Watercutter, Marvel’s Secret Invasion AI Scandal Is Strangely Hopeful, Wired (June 23, 2023, 9:00 AM), https://www.wired.com/story/marvel-secret-invasion-artificial-int‌elligence/. ↑

  3.  See Dani Di Placido, Marvel’s AI-Generated ‘Secret Invasion’ Sequence Sparks Backlash, Forbes (June 23, 2023, 11:47 AM), https://www.forbes.com/sites/danidiplacido/2023/06/21/t‌he-big-backlash-against-marvels-secret-invasion-explained/?sh=2ef04c17344e. ↑

  4.  Carolyn Giardina, ‘Secret Invasion’ Opening Using AI Cost “No Artists’ Jobs,” Says Studio That Made It, Hollywood Rep. (June 21, 2023, 8:12 PM), https://www.hollywoodrepo‌rter.com/tv/tv-news/secret-invasion-ai-opening-1235521299/ [https://perma.cc/3DTD-U4‌6W]. ↑

  5.  For a full discussion of what I mean by “generative AI,” see infra Section I.A. ↑

  6.  See generally Lisa Macpherson, Lies, Damn Lies, and Generative Artificial Intelligence: How GAI Automates Disinformation and What We Should Do About It, Pub. Knowledge (Aug. 7, 2023), https://publicknowledge.org/lies-damn-lies-and-generative-artificial-intellige‌nce-how-gai-automates-disinformation-and-what-we-should-do-about-it/ [https://perma.cc/9‌BNL-QN9S] (discussing the potential harm to the integrity of news through the use of generative AI); Adam Satariano & Paul Mozur, The People Onscreen Are Fake. The Disinformation Is Real, N.Y. Times (Feb. 7, 2023), https://www.nytimes.com/2023/02/07/tec‌hnology/artificial-intelligence-training-deepfake.html (describing how deepfakes make it difficult to separate reality from forgeries and enable the spread of propaganda by foreign governments); Todd C. Helmus, Artificial Intelligence, Deepfakes, and Disinformation: A Primer, RAND Corp. (July 6, 2022), https://www.rand.org/pubs/perspectives/PEA1043-1.ht‌ml [https://perma.cc/HD55-62L5] (observing that, in an increasingly polarized and fact-resistant political climate, deepfakes pose a potent threat). See also Council Regulation 2024/1689, art. 134, 2024 O.J. (L) 1, 34 (EU) (requiring creators of deepfakes to disclose use of AI). ↑

  7.  As discussed below, AI cannot be an author for legal purposes, so when I say “AI authorship,” I refer to situations in which AI has accomplished the creative work that we generally associate with human authorship. See infra Subsections I.B.2, II.C.2. ↑

  8.  See infra Subsection I.B.1; see, e.g., Lucas Bellaiche et al., Humans Versus AI: Whether and Why We Prefer Human-Created Compared to AI-Created Artwork, 8 Cognitive Rsch., 2023, at 1, 3 (observing that, across multiple artistic mediums, study participants preferred art labelled “human-created” over art labelled “AI-created”). ↑

  9.  See, e.g., Naruto v. Slater, 888 F.3d 418, 426 (9th Cir. 2018) (monkey that took “selfie” photos could not claim copyright for lack of standing); see also infra Subsection I.B.2 (discussing limits on copyright protections for works not produced by human beings). ↑

  10.  The Copyright Office is a regulatory body housed in the Library of Congress that is responsible for registering new works. See infra Subsection I.B.2. ↑

  11.  See, e.g., Letter from Robert J. Kasunic, U.S. Copyright Off. Rev. Bd., to Van Lindberg, Taylor Eng. Duma LLP, Zarya of the Dawn (Registration # VAu001480196), at 5–8 (Feb. 21, 2023), https://www.cop‌yright.gov/docs/zarya-of-the-daw‌n.pdf [https://perma.cc/X54U-MQ‌4F] (finding that AI-generated images in a comic book were unprotectable but the comic book could still be thinly protected as a compilation). ↑

  12.  See, e.g., Thaler v. Perlmutter, 687 F. Supp. 3d 140, 149–50 (D.D.C. 2023) (upholding denial of copyright registration where “the record designed by plaintiff from the outset of his application for copyright registration . . . [showed] the absence of any human involvement in the creation of the work,” precluding copyrightability for AI-generated image); see also infra Subsection I.B.2 (describing instances in which acknowledging the role of AI in a work’s creation foreclosed copyright protection). ↑

  13.  Disclosure to the Copyright Office and public disclosure are interrelated. The Copyright Office has begun listing registrations that explicitly state whether a work is a product of generative AI (noting that the AI-produced elements are unprotectable). These registrations are easily publicly searchable. See infra Section I.C. ↑

  14.  See Douglas A. Kysar, Preferences for Processes: The Process/Product Distinction and the Regulation of Consumer Choice, 118 Harv. L. Rev. 525, 529 (2004) (examining how “consumer preferences may be heavily influenced by information regarding the manner in which goods are produced”). ↑

  15.  See infra Subsection II.A.1. ↑

  16.  See infra Subsection II.A.2. ↑

  17.  See infra Subsection II.A.3. ↑

  18.  See infra Part II (examining difficulties of determining whether consumer preferences should give rise to regulatory action). ↑

  19.  By “readership,” I mean the experience of engaging with a work of art or entertainment. See infra Section II.B. ↑

  20.  Jay Caspian Kang, What’s the Point of Reading Writing by Humans?, New Yorker (Mar. 31, 2023), https://www.newyorker.com/news/our-columnists/whats-the-point-of-reading-writ‌ing-by-humans; see also infra note 199 (surveying other writers’ similar perspectives). ↑

  21.  See infra Subsection II.B.1 (noting that postmodern theorists have questioned the importance of the individual author). See generally Roland Barthes, The Death of the Author, in Image, Music, Text 142 (Stephen Heath trans., 1977) (criticizing literary critics’ preoccupation with individual authors and instead emphasizing the importance of readers as recipients and interpreters of literary texts). ↑

  22.  Importantly, I distinguish between truly “authoring” a work—that is, generating something that is at the creative heart of the work—and using AI in a merely assistive role. Copyright’s doctrinal distinction between these two concepts corresponds well to this normative distinction. See infra Subsection II.C.2. I also explain why the use of a human ghostwriter does not pose the same problems as undisclosed AI authorship. See infra Subsection II.C.1. ↑

  23.  See infra Subsection II.B.2 (exploring how lack of knowledge regarding a work’s provenance forces consumers to exclusively engage with works of art on market-based, rather than social, terms). ↑

  24.  See infra Subsection III.A.1 (examining private ordering solutions, such as provenance tracking and a certification regime). ↑

  25.  See infra Subsection III.A.2. ↑

  26.  See infra Section III.B. ↑

  27.  See infra Section III.C (exploring barriers to legislation and FTC enforcement). ↑

  28.  See infra Subsection III.C.1; see also infra Subsection I.B.2 (noting that AI-generated material is inherently in the public domain due to lack of authorship, rendering many AI-derived works unprotectable or only thinly protectable). ↑

  29.  See infra Subsection III.C.1. In particular, a copyright misuse finding prevents a rightsholder from enforcing even legally protectable aspects of their work, rendering the work completely uncopyrightable and essentially valueless. See infra Subsection III.C.1. ↑

  30.  See infra Subsection II.A.3 (discussing examples such as “fake Drake”). ↑

  31.  See infra Subsection III.C.2. ↑

Fines, Forfeitures, and Federalism

Fines are ubiquitous in modern society, and they are imposed for both serious crimes and minor civil wrongs. The U.S. Supreme Court recently recognized that the Constitution’s Excessive Fines Clause applies to the states, but that decision raises previously unexplored questions as to how to enforce the Clause’s protections in the states. A key question is what role, if any, federalism should play in crafting doctrinal rules that apply the Clause’s protections to state and local fines and related property forfeitures. This Article is the first to accord in-depth treatment to that important question.

The extent to which federalism principles should apply does not have an immediate and obvious answer. On the one hand, federalism plays a significant role in the Court’s jurisprudence on the Cruel and Unusual Punishment Clause. The Court therefore generally takes a highly deferential approach in reviewing sentences of imprisonment. Lower courts have applied that same deferential review in the context of the Excessive Fines Clause. On the other hand, fines and forfeitures are unlike other forms of punishment—such as prison—because they are often used as a revenue source for state and local governments, creating a conflict of interest for state and local decision-making bodies.

To address this conundrum, this Article makes the novel argument that the Court should look to the exactions doctrine under the Takings Clause, which often implicates similar concerns of government self-interest and overreaching. Exactions and excessive fines are conceptually similar, but scholars thus far have overlooked the close relationship between them. The exactions doctrine gives minimal weight to federalism concerns, and it applies a heightened-scrutiny standard that is well suited to the excessive fines context. Indeed, differences between federal practice and state and local practices as to fines suggest that state and local discretionary fines should be subject to closer constitutional scrutiny than federal fines. As a recent example illustrates, such heightened scrutiny would ensure that the Excessive Fines Clause is not merely a parchment barrier, while still accounting for variations between states and localities in terms of their communities’ values and needs.

Introduction

The U.S. Supreme Court recently held that the Excessive Fines Clause of the Eighth Amendment is incorporated into the Due Process Clause of the Fourteenth Amendment and, thus, applies to state action.1 1.Timbs v. Indiana, 139 S. Ct. 682, 687 (2019) (holding that the Excessive Fines Clause applied to the states).Show More The expanded applicability of the Excessive Fines Clause may ultimately mean very little, as lower courts generally are highly deferential in their constitutional review of fines and forfeitures.2 2.See infra Subsection I.A.2.Show More Indeed, many courts apply a presumption of constitutionality to a fine or forfeiture below the statutory maximum, rendering illusory the Clause’s protections3 3.See, e.g., Ficken v. City of Dunedin, No. 21-11773, 2022 WL 2734429, at *3 (11th Cir. July 14, 2022); City of Seattle v. Long, 493 P.3d 94, 115 (Wash. 2021); United States v. Suarez, 966 F.3d 376, 387 (5th Cir. 2020); Commonwealth v. Ishankulov, 275 A.3d 498, 505 (Pa. Super. Ct. 2022); Morrow v. City of San Diego, No. 11-cv-01497, 2011 WL 4945015, at *5 (S.D. Cal. Oct. 18, 2011).Show More—even, for example, when someone stands to lose their house for failure to mow their lawn.4 4.See infra Section I.A (discussing Ficken).Show More

This deferential review is consistent with principles of federalism, which generally provide that the federal branches of government, including the judiciary, must respect state and local decision-making.5 5.See infra Sections I.B, II.A.Show More The current Court has fully embraced federalism in many recent decisions, leading one commentator to refer to the Court as “the most ‘federalism’-friendly court in at least a century.”6 6.Sanford V. Levinson, Is the Supreme Court Moving Us Backward, or Back Toward Federalism?, Dall. Morning News (July 29, 2022, 7:00 AM), https://www.dallasnews.com/op‌inion/commentary/2022/07/31/is-the-supreme-court-moving-us-backward-or-back-toward-fe‌deralism/ [https://perma.cc/NNW4-FCZ6]; see also Timothy M. Harris, Backwards Federalism: The Withering Importance of State Property Law in Modern Takings Jurisprudence, 75 Rutgers U. L. Rev. 571, 572–73, 601–06 (2023) (citing Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228 (2022), and West Virginia v. EPA, 142 S. Ct. 2587 (2022), as recent decisions demonstrating that the Court, overall, is elevating federalism concerns over issues such as abortion rights and climate change).Show More However, neither the Court nor scholars have yet directly addressed the weight federalism concerns carry in the excessive fines context because of the recentness of the Court’s incorporation of the Excessive Fines Clause. I seek to explore that key issue herein.

Ultimately, I conclude that federalism should play a minimal role as to the Excessive Fines Clause and, relatedly, that heightened scrutiny should instead apply to the review of discretionary state and local fines. This conclusion, however, is in tension with the Court’s current doctrine. Thus far, the Court has relied upon cases involving the Cruel and Unusual Punishment Clause for guidance in shaping the contours of excessive fines doctrine.7 7.See United States v. Bajakajian, 524 U.S. 321, 336–37 (1998).Show More It has done so with little reasoning.8 8.See id. The Eighth Amendment provides in its entirety: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const. amend. VIII.Show More Federalism principles play a central role in the Court’s cruel and unusual punishment cases, such that the Court takes a highly deferential approach to its review of sentences of imprisonment.9 9.See infra Section II.A.Show More Lower courts have adopted that same deferential approach in the excessive fines context.10 10.See infra Section II.B.Show More

This Article argues that the exactions doctrine within the Takings Clause is a better analogue—at least as to state and local fines. Both the Takings Clause and the Excessive Fines Clause limit government acquisitions of property: takings must be for public use and just compensation must be paid,11 11.U.S. Const. amend. V.Show More and punitive fines and forfeitures must not be excessive.12 12.See Austin v. United States, 509 U.S. 602, 610 (1993); U.S. Const. amend. VIII.Show More State and local governments often rely upon fines and forfeitures as sources of revenue, raising concerns similar to those underlying exactions—that the government is acting out of self-interest, overreaching, and singling out the few to shoulder what should be public burdens.13 13.See infra Sections II.B, III.A. I use the term “self-interest” throughout to refer to government action for the purpose of acquiring funds and other resources to fund the workings of government itself or to use for a public project. Cf. United States v. Winstar Corp., 518 U.S. 839, 896 (1996) (“[W]hen we speak of governmental ‘self-interest,’ we simply mean to identify instances in which the Government seeks to shift the costs of meeting its legitimate public responsibilities to private parties.”). I distinguish this from government action that resolves disputes between private parties or that costs the government money. Although the funds or other property acquired will ultimately serve the public interest when used for public services or projects, the risk of government overreach is heightened when it seeks to expand its resources. See infra Subsection III.C.1.Show More These concerns are generally not present as to sentences of imprisonment, which cost the government money.

To date, scholars have largely overlooked this close relationship between takings and excessive fines. This Article explores the connection and shows how takings jurisprudence—primarily the exactions doctrine—may prove especially useful for the Court as it continues to flesh out the doctrinal details of the Excessive Fines Clause.

In the takings context, the Supreme Court has held that heightened scrutiny applies to exactions, which occur when the government requests private property in exchange for lifting land-use restrictions.14 14.See Lee Anne Fennell, Escape Room: Implicit Takings After Cedar Point Nursery, 17 Duke J. Const. L. & Pub. Pol’y 1, 49–50 (2022) (noting that exactions receive “high scrutiny” and are reviewed under standards “far beyond the usual standard for social and economic legislation”).Show More Specifically, the Court requires the government to show both (1) a nexus between the exaction and the proposed development and (2) that the exaction is roughly proportionate to the impact of the proposed development.15 15.See Koontz v. St. Johns River Water Mgmt. Dist., 570 U.S. 595, 599, 612 (2013).Show More The Court has explained that its exactions doctrine is a special application of its “unconstitutional conditions doctrine” and has justified the heightened scrutiny with concerns about government self-interest and overreaching.16 16.See infra Paragraph III.B.2.i; Subsection III.C.1.Show More The Court has rejected federalism-based arguments that a more deferential standard should apply to review of state and local exactions.17 17.See infra Subsection III.B.2.Show More

Although I do not rely on the unconstitutional conditions doctrine, I argue that heightened scrutiny should apply to discretionary fines due to similar concerns, and despite the federalism principles at play.18 18.Outside of the excessive fines context, scholars have argued that the Court should adopt an inquiry similar to the exactions inquiry to determine whether the public use requirement of the Takings Clause is satisfied with respect to a particular exercise of the power of eminent domain. See Brief for David L. Callies et al. as Amici Curiae Supporting Petitioners at 22–25, Kelo v. City of New London, 545 U.S. 469 (2005) (No. 04-108).Show More State and local fines often directly fund those governments, bringing in millions in revenue.19 19.See, e.g., Ben Wieder, Shirsho Dasgupta & Sheridan Wall, Families Lose Homes After Florida Cities Turbocharge Code Enforcement Foreclosures, Mia. Herald (Sept. 2, 2024, 12:43 PM), https://www.miamiherald.com/news/business/real-estate-news/article273093600.‌html [https://perma.cc/FSZ9-K98C].Show More By contrast, federal criminal fines are generally not used as a source of revenue.20 20.Federal criminal fines generally do not pose issues of self-interest, as most criminal fines are paid into the Crime Victim Fund. See 34 U.S.C. § 20101(b)(1). Federal forfeitures, however, do implicate issues of government self-interest, as they often function as revenue sources for both the federal government and, through equitable sharing programs, for state and local governments. See Lisa Knepper, Jennifer McDonald, Kathy Sanchez & Elyse Smith Pohl, Inst. for Just., Policing for Profit: The Abuse of Civil Asset Forfeiture 15–17 (3d ed. 2020), https://ij.org/wp-content/uploads/2020/12/policing-for-profit-3-web.pdf [https://perma‌.cc/JQ2H-YWS8].Show More Further, state and local fines are imposed by judges who often have wide discretion as to the fine amounts and generally are not required by statute to ensure that the fine is proportional to the severity of the offense and the offender’s ability to pay. Federal statutes, however, require federal courts to consider the circumstances of the offense and the offender’s financial circumstances. Concerns of government overreach and singling out are thus particularly acute in the context of state and local discretionary fines, suggesting that they should perhaps be subject to more scrutiny than in the federal context—not more deference on federalism grounds.21 21.See infra Section IV.A.Show More

In analyzing mandatory fines, which are similar in nature to legislative exactions and involve heightened federalism concerns, I rely upon the Supreme Court’s 2024 decision in Sheetz v. County of El Dorado, holding that legislative exactions are not categorically excluded from heightened review.22 22.144 S. Ct. 893, 902 (2024).Show More I ultimately suggest that certain mandatory fines may violate the Excessive Fines Clause to the extent they wholly fail to account for the individualized circumstances of the offense and the offender.

The heightened scrutiny proposed in this Article would be a substantial step toward eliminating the significant governmental abuses that currently occur with respect to discretionary and certain mandatory fines and forfeitures. Fines and forfeitures have a disproportionate impact on impoverished and disadvantaged groups.23 23.For example, a 2023 investigation by the Miami Herald shows that Black-owned heirs’ property was recently the target of “ramped-up foreclosures over unpaid code fines in numerous cities across [Florida].” Amelia Winger, Heirs to Black-Owned Homes Face Ramped-Up Foreclosures. Here’s Who’s Pushing Back, Mia. Herald (Sept. 2, 2024, 7:50 AM), https://www.miamiherald.com/news/business/real-estate-news/article276644691.‌html [https://perma.cc/ZF46-GFK7].Show More They can result in debtors losing their ability to pay for basic necessities, including rent or housing payments, which also may impact debtors’ families.24 24.Beth A. Colgan, The Excessive Fines Clause: Challenging the Modern Debtors’ Prison, 65 UCLA L. Rev. 2, 67 (2018) [hereinafter Colgan, Debtors’ Prison].Show More Fines often result in property liens, which if foreclosed upon (a common practice in some states) can result in the loss of the debtor’s home.25 25.See Wieder et al., supra note 19; Jayati Ramakrishnan, Analysis Finds Property Owners in Portland’s Most Diverse, Gentrifying Areas Hardest Hit by Code Violation Fines, The Oregonian (Nov. 3, 2021, 6:00 AM), https://www.oregonlive.com/portland/2021/11/analysis-finds-property-own‌ers-in-portlands-most-diverse-gentrifying-areas-hardest-hit-by-code-vio‌lation-fines.html [https://perma.cc/9GDQ-7P6D]; Jaelynn Grisso, Code Violations Can Be Double-Edged Sword for Low-Income Residents, Matter News (June 4, 2021), https://matter‌news.org/comm‌unity/code-violations-can-be-double-edged-sword-for-low-income-residents/ [https://perma.‌cc/V87S-PD4X]; Eileen Zaffiro-Kean, Daytona Properties with Unpaid Fines Could Face Foreclosure, Daytona Beach News-J. (May 14, 2017, 3:13 PM), https://www.n‌ews-jour‌nalonline.com/story/business/real-estate/2017/05/14/daytona-properties-with-unpai‌d-fines-c‌ould-face-foreclosure/21045567007/ [https://perma.cc/VS7N-BUGH]. In some states this practice is very common. In the past eight years, one attorney has filed foreclosure lawsuits against more than 800 properties in nine Florida cities. Ben Wieder, Lawyer Once Helped Debt-Ridden Owners Hang on to Homes. Now He Helps Cities Take Them Away, Mia. Herald (Jan. 26, 2025, 6:35 AM), https://www.miamiherald.com/news/bus‌iness/real-est‌ate-news/arti‌cle273093630.html [https://perma.cc/7GP2-M8QP].Show More State and local governments can also use fines and foreclosures on the related liens as a way to acquire property without formally condemning blighted property and paying the just compensation required under the Takings Clause.26 26.See infra Section IV.A.Show More

This Article proceeds as follows: Part I examines key questions about the application of the Excessive Fines Clause that remain after Timbs v. Indiana, which held that the provision applies to the states. It also discusses the role federalism plays both in court opinions and the scholarship addressing the formulation of doctrine to enforce the Bill of Rights. Part II of the Article analyzes the role federalism has played in the Supreme Court’s cruel and unusual punishment cases and how those cases have influenced the Court with respect to its formulation of doctrine to implement the meaning of the Excessive Fines Clause. Part III then turns to the Court’s takings jurisprudence and explores (1) the similarities between takings and excessive fines, (2) the heightened scrutiny that applies in the exactions context, and (3) the federalism arguments against such scrutiny. Part IV argues that the Court should apply its heightened scrutiny to the review of discretionary fines so as to ensure that excessive fines provisions do not remain toothless. This Part further argues that federalism generally has only a minimal role to play in this context. Federalism plays a larger role as to mandatory fines, but as I suggest, certain mandatory fines may themselves be inconsistent with the Excessive Fines Clause. A short Conclusion follows.

  1.  Timbs v. Indiana, 139 S. Ct. 682, 687 (2019) (holding that the Excessive Fines Clause applied to the states). ↑
  2.  See infra Subsection I.A.2. ↑
  3.  See, e.g., Ficken v. City of Dunedin, No. 21-11773, 2022 WL 2734429, at *3 (11th Cir. July 14, 2022); City of Seattle v. Long, 493 P.3d 94, 115 (Wash. 2021); United States v. Suarez, 966 F.3d 376, 387 (5th Cir. 2020); Commonwealth v. Ishankulov, 275 A.3d 498, 505 (Pa. Super. Ct. 2022); Morrow v. City of San Diego, No. 11-cv-01497, 2011 WL 4945015, at *5 (S.D. Cal. Oct. 18, 2011). ↑
  4.  See infra Section I.A (discussing Ficken). ↑
  5.  See infra Sections I.B, II.A. ↑
  6.  Sanford V. Levinson, Is the Supreme Court Moving Us Backward, or Back Toward Federalism?, Dall. Morning News (July 29, 2022, 7:00 AM), https://www.dallasnews.com/op‌inion/commentary/2022/07/31/is-the-supreme-court-moving-us-backward-or-back-toward-fe‌deralism/ [https://perma.cc/NNW4-FCZ6]; see also Timothy M. Harris, Backwards Federalism: The Withering Importance of State Property Law in Modern Takings Jurisprudence, 75 Rutgers U. L. Rev. 571, 572–73, 601–06 (2023) (citing Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228 (2022), and West Virginia v. EPA, 142 S. Ct. 2587 (2022), as recent decisions demonstrating that the Court, overall, is elevating federalism concerns over issues such as abortion rights and climate change). ↑
  7.  See United States v. Bajakajian, 524 U.S. 321, 336–37 (1998). ↑
  8.  See id. The Eighth Amendment provides in its entirety: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const. amend. VIII. ↑
  9.  See infra Section II.A. ↑
  10.  See infra Section II.B. ↑
  11.  U.S. Const. amend. V. ↑
  12.  See Austin v. United States, 509 U.S. 602, 610 (1993); U.S. Const. amend. VIII. ↑
  13.  See infra Sections II.B, III.A. I use the term “self-interest” throughout to refer to government action for the purpose of acquiring funds and other resources to fund the workings of government itself or to use for a public project. Cf. United States v. Winstar Corp., 518 U.S. 839, 896 (1996) (“[W]hen we speak of governmental ‘self-interest,’ we simply mean to identify instances in which the Government seeks to shift the costs of meeting its legitimate public responsibilities to private parties.”). I distinguish this from government action that resolves disputes between private parties or that costs the government money. Although the funds or other property acquired will ultimately serve the public interest when used for public services or projects, the risk of government overreach is heightened when it seeks to expand its resources. See infra Subsection III.C.1. ↑
  14.  See Lee Anne Fennell, Escape Room: Implicit Takings After Cedar Point Nursery, 17 Duke J. Const. L. & Pub. Pol’y 1, 49–50 (2022) (noting that exactions receive “high scrutiny” and are reviewed under standards “far beyond the usual standard for social and economic legislation”). ↑
  15.  See Koontz v. St. Johns River Water Mgmt. Dist., 570 U.S. 595, 599, 612 (2013). ↑
  16.  See infra Paragraph III.B.2.i; Subsection III.C.1. ↑
  17.  See infra Subsection III.B.2. ↑
  18.  Outside of the excessive fines context, scholars have argued that the Court should adopt an inquiry similar to the exactions inquiry to determine whether the public use requirement of the Takings Clause is satisfied with respect to a particular exercise of the power of eminent domain. See Brief for David L. Callies et al. as Amici Curiae Supporting Petitioners at 22–25, Kelo v. City of New London, 545 U.S. 469 (2005) (No. 04-108). ↑
  19.  See, e.g., Ben Wieder, Shirsho Dasgupta & Sheridan Wall, Families Lose Homes After Florida Cities Turbocharge Code Enforcement Foreclosures, Mia. Herald (Sept. 2, 2024, 12:43 PM), https://www.miamiherald.com/news/business/real-estate-news/article273093600.‌html [https://perma.cc/FSZ9-K98C]. ↑
  20.  Federal criminal fines generally do not pose issues of self-interest, as most criminal fines are paid into the Crime Victim Fund. See 34 U.S.C. § 20101(b)(1). Federal forfeitures, however, do implicate issues of government self-interest, as they often function as revenue sources for both the federal government and, through equitable sharing programs, for state and local governments. See Lisa Knepper, Jennifer McDonald, Kathy Sanchez & Elyse Smith Pohl, Inst. for Just., Policing for Profit: The Abuse of Civil Asset Forfeiture 15–17 (3d ed. 2020), https://ij.org/wp-content/uploads/2020/12/policing-for-profit-3-web.pdf [https://perma‌.cc/JQ2H-YWS8]. ↑
  21.  See infra Section IV.A. ↑
  22.  144 S. Ct. 893, 902 (2024). ↑
  23.  For example, a 2023 investigation by the Miami Herald shows that Black-owned heirs’ property was recently the target of “ramped-up foreclosures over unpaid code fines in numerous cities across [Florida].” Amelia Winger, Heirs to Black-Owned Homes Face Ramped-Up Foreclosures. Here’s Who’s Pushing Back, Mia. Herald (Sept. 2, 2024, 7:50 AM), https://www.miamiherald.com/news/business/real-estate-news/article276644691.‌html [https://perma.cc/ZF46-GFK7]. ↑
  24.  Beth A. Colgan, The Excessive Fines Clause: Challenging the Modern Debtors’ Prison, 65 UCLA L. Rev. 2, 67 (2018) [hereinafter Colgan, Debtors’ Prison]. ↑
  25.  See Wieder et al., supra note 19; Jayati Ramakrishnan, Analysis Finds Property Owners in Portland’s Most Diverse, Gentrifying Areas Hardest Hit by Code Violation Fines, The Oregonian (Nov. 3, 2021, 6:00 AM), https://www.oregonlive.com/portland/2021/11/analysis-finds-property-own‌ers-in-portlands-most-diverse-gentrifying-areas-hardest-hit-by-code-vio‌lation-fines.html [https://perma.cc/9GDQ-7P6D]; Jaelynn Grisso, Code Violations Can Be Double-Edged Sword for Low-Income Residents, Matter News (June 4, 2021), https://matter‌news.org/comm‌unity/code-violations-can-be-double-edged-sword-for-low-income-residents/ [https://perma.‌cc/V87S-PD4X]; Eileen Zaffiro-Kean, Daytona Properties with Unpaid Fines Could Face Foreclosure, Daytona Beach News-J. (May 14, 2017, 3:13 PM), https://www.n‌ews-jour‌nalonline.com/story/business/real-estate/2017/05/14/daytona-properties-with-unpai‌d-fines-c‌ould-face-foreclosure/21045567007/ [https://perma.cc/VS7N-BUGH]. In some states this practice is very common. In the past eight years, one attorney has filed foreclosure lawsuits against more than 800 properties in nine Florida cities. Ben Wieder, Lawyer Once Helped Debt-Ridden Owners Hang on to Homes. Now He Helps Cities Take Them Away, Mia. Herald (Jan. 26, 2025, 6:35 AM), https://www.miamiherald.com/news/bus‌iness/real-est‌ate-news/arti‌cle273093630.html [https://perma.cc/7GP2-M8QP]. ↑

  26.  See infra Section IV.A. ↑

©Virginia Law Review Association. All rights reserved.