Child Welfare Rights Versus a Mother’s Right to Rear Children: Do Prison Nursery Programs Benefit Both?
By Anna VanRoy
Prison Nursery Programs (PNP) highlight the complex balance between protecting child welfare and honoring a mother’s right to parent, even within the confines of incarceration. Courts often prioritize a state’s authority to incarcerate over maternal rights. Programs in New York and Illinois demonstrate that with proper oversight and support services, safeguarding both the child’s well-being and the mother’s rehabilitative potential is possible. When implemented effectively, PNP’s not only promote healthy early child development but also foster accountability, stability, and stronger family connections—benefiting both mother and child in the long term.
Many women experience pregnancies and even childbirth while behind bars. More women experience this today as incarceration rates have increased.[1] Almost one million women and girls are either incarcerated or on probation or parole.[2] U.S. state and federal prisons, local and regional jails, immigration detention centers, military prisons, Tribal jails, and other so-called correctional facilities hold nearly 172,700 females.[3] Among this group of women, approximately one in 25 enter jails or prisons pregnant.[4] As a result, the number of babies born to mothers who are behind bars has also grown at an alarming rate.[5] Incarcerated mothers birth an estimated 2,000 infants each year.[6] Due to the lack of resources and programs, many prison officials take babies from their mothers a short 24 hours after birth and placed either with a family member or the foster care system.[7]
This special population of prisoners is in dire need of recognition by policy makers. Some states have begun to provide PNP’s for women to participate in. PNP’s vary from state to state, but PNP’s core goal is to emphasize the period between zero to two years for critical infant attachment formation.[8] The programs also highlight the need for stability provided by consistent caregiver interactions.[9] PNP’s exist in California, Illinois, Indiana, Nebraska, New York, Ohio, South Dakota, Washington, and West Virginia.[10] New York was the first state to implement such a program in 1902.[11] Nebraska was the second state to follow suit in 1994.[12]
One of New York State’s PNP’s is in Bedford Hills Correction Facility in upper Westchester County.[13] Women who participated in the PNP often complained about “conflicting demands exerted on the inmate to be simultaneously a prisoner who surrenders autonomy and a mother who cannot function without it.”[14] Within the facility women began to resent not being able to choose the baby’s doctor, food, toys, or clothing.[15] In addition, no mother was given a private space to be with her baby and could not participate in other prison activities away from the nursery floor.[16] Mothers in prison should be allowed to freely parent their children.[17] Although these women are incarcerated for serious crimes at this facility, it is important to recognize the womanly instinct to nurture and protect a child.
Illinois also implements parental services for mothers and their children. The Moms and Babies Program at the Decatur Correctional Center provides “both in-prison services for incarcerated mothers and their babies, and community-based services following release from prison.”[18] The Moms and Babies Program supports incarcerated mothers and newborn infants for specified amounts of time.[19] While in the program, mothers will utilize support networks, parenting classes, training on communication and relationships, mental health services, and prepare for parenting outside of the prison.[20]
In Troxel v. Granville, the Supreme Court explicitly affirmed that the liberty interest of parents in the care, custody, and control of their children is “perhaps the oldest of the fundamental liberty interests recognized by this Court.”[21] The Court cited earlier precedents which held that the “liberty” protected by the Due Process Clause includes the right of parents to “establish a home, bring up children”, and control their education.[22] The Court emphasized that the Constitution protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.[23]
However, different state courts have denied the right to raise one’s child while incarcerated. In Pendergrass v. Toombs, the Oregon Court of Appeals held that the right to raise one’s child is incompatible with incarceration.[24] The Court held that incarceration trumps the right of a woman to rear children.[25] This decision is one of the many that highlight the need for PNP’s in every state. Without PNP’s, decisions like this push the harmful consequences of separating children from their mothers early in life.
Although New York is one of the pioneers for PNP’s, courts there have held that mothers cannot be incarcerated with their child depending on their status in the criminal justice system.[26] These decisions have turned on current and pending charges against the mother that highlight the mother’s ability to parent.[27]Bailey v. Lombard, held that it was not in best interests of the newborn child to allow the child to remain with mother in custody in county jail.[28] The court relied on the fact that the mother’s past highlighted a pattern of parent-child separation with her other children and that she had been sentenced for additional criminal offenses in other jurisdictions.[29]
Another NY court distinguished between a mother awaiting trial and one who had a criminal history. In Apgar v. Beauter,[30]the court stated that a mother who gave birth while awaiting trial is different from a mother who is found guilty.[31] Stating that the rights of the mother did not at the time of decision conflict with the rights and welfare of the child.[32]
New NY legislation reflects the same sentiment of balancing the rights of the welfare of the newborn child and the rights of the incarcerated mother.[33] A 2022 law allows for a child to be returned to their mother if the facilities chief medical officer certifies that the mother is fit to care for the child.[34] In cases where the medical officer finds the mother fit, the child is permitted to stay with the mother for roughly the first year of the child’s life.[35] The opportunity for a mother to have a small window to bond and care for her child while incarcerated is a necessary form of rehabilitation.[36] PNP’s will make prisons and jails across the country a place for rehabilitation and growth.
Programs in states like New York and Illinois show that, with proper oversight, both child well-being and maternal rehabilitation can be achieved. While courts have often prioritized the state’s authority to incarcerate, these initiatives prove that balance is possible. PNP’s reveal the ongoing challenge of protecting child welfare while respecting the mothers right to parent—even in confinement. When implemented effectively, PNP’s promote enhancing parenting skills, healthy child development, and accountability.
[1] Analisa Johnson, The Benefits of Prison Nursery Programs: Spreading Awareness to Correctional Administrators Through Informative Conferences and Nursery Program Site Visits, 9 Bos. Univ. Arts & Sci. Writing Program (2016-2017) https://www.bu.edu/writingprogram/journal/past-issues/issue-9/johnson/.
[13] R.L. Segal, Prison Nursery – Bedford Hills Correction Facility, Off. of Just. Programs , U.S. Dep’t. of Just. (1982), https://www.ojp.gov/ncjrs/virtual-library/abstracts/prison-nursery-bedford-hills-correction-facility. This program includes pregnant women convicted of serious offenses and sentenced to a maximum-security prison. Id. In this scenario mothers face extended prison terms and will inevitably be separated from their child. Id.
[18] Moms and Babies Program, Addiction Policy Forum (May 25, 2017), https://www.addictionpolicy.org/post/moms-and-babies-program (mothers must be charged with non-violent offenses only and be deemed mentally and physically fit to participate in the program).
[19]Id. (explaining mothers must be within two years of release and bonding is encouraged for the first year of the newborn’s life).
[24] 24 Or. App. 719, 721 (Or. App. 1976) (explaining petitioner was pregnant at the time she was committed to the Oregon Women’s Correctional Center, after being found guilty of the crimes of attempted murder and assault. A few days later she was taken to a hospital for the birth of her child and was separated from the child and returned to the Correctional Center. The Correctional Center administration refused to grant her temporary leave so that she could be with and breast-feed her child.)
[35]Id. (“A child may remain in the correctional institution with its mother for such period as seems desirable for the welfare of such child, but not after it is one year of age, provided, however, if the mother is in a state reformatory and is to be paroled shortly after the child becomes one year of age, such child may remain at the state reformatory until its mother is paroled, but in no case after the child is eighteen months old.”).
Nearly every generation in America uses social media to connect, learn, or engage in public conversation.[1] These platforms, like Facebook, X (formerly Twitter), Instagram, and TikTok, function as the new town square, yet the government has no ownership of them.[2] This reality presents a constitutional paradox: while the First Amendment protects citizens from government censorship, it does not constrain private platforms that now mediate most of our public disclosure.[3] As social media becomes central to communication and politics, courts and legislatures grapple with a fundamental question: what does “free speech” mean when private companies control the space where speech happens?[4]
Two recent Supreme Court cases, Packingham v. North Carolina and Murthy v. Missouri, capture the tensions between government regulation and private moderation.[5] State and federal lawmakers proposed hundreds of bills to regulate how these platforms operate.[6] These developments suggest that the First Amendment is entering a new era: one defined by blurred boundaries between public and private control over speech.[7]
Constitutional Baseline: Government vs. Private Regulation.
The First Amendment restricts only government action.[8] Private entities are not state actors and therefore have their own First Amendment rights to curate, moderate, or remove speech.[9] The First Amendment does not bound social media companies because they are privately owned.[10] Not only are these private companies allowed to write community guidelines that limit users’ speech, but Section 230 of the Communications Decency Act also shields and protects online platforms from liability for user content and their moderation choices.[11] This statutory immunity allows platforms to remove or restrict posts they find objectionable without fear of legal consequence.[12] For example, TikTok prohibits “hateful behavior or ideologies.”[13] The Supreme Court declined to limit Section 230 twice.[14] The Court suggested Congress should change the law because if the law were revoked, the internet would sink.[15] Supporters argue that Section 230 prevents an avalanche of lawsuits and encourages free expression online;[16] critics counter that it grants private corporations excessive power to silence certain viewpoints.[17]
The result is a constitutional divide: the government cannot censor, but private platforms can.[18] Yet, when the government pressures or collaborates with these platforms to suppress information, the First Amendment may reenter the picture.
Government Officials Online: When Public Accounts Become Public Forums.
Courts began addressing whether an official’s account qualifies as a “public forum” as social media became a vital tool of communication among public officials.[19] The Knight Inst. v. Trump case held that the President’s Twitter account was a public forum because he used it to conduct official business and interact with constituents.[20] Therefore, blocking users for their viewpoints violated the First Amendment.[21] Similarly, the Fourth Circuit in Davison v. Randall reached the same conclusion regarding a local official’s Facebook page.[22] However, not all courts agree. In Morgan v. Bevin, the Sixth Circuit held that the Kentucky Governor’s Facebook and Twitter accounts were not public forums because they were personal and not state controlled.[23] The doctrine depends on whether the space is government-controlled, not merely publicly accessible.
The Supreme Court’s decision in Packingham underscored the significance of online expression but stopped short of treating private social media as government forums.[24] The Court struck down a state law prohibiting registered sex offenders from accessing social media, calling such platforms “the most important places for the exchange of views.”[25] However, the Court also cautioned against treating private social media sites as constitutional public forums and recognized that ownership and control still matter.[26]
Government Regulation of Private Platforms.
Beyond public officials’ accounts, the government sought to regulate the platforms themselves.[27] State legislatures have introduced more than 400 bills since 2021 targeting social media regulation. These efforts range from content moderation transparency requirements to outright bans.[28]
For example, in 2020 TikTok became the central focus.[29] In 2020, President Trump issued an executive order banning TikTok and WeChat from app stores, citing national security concerns.[30] The order never took full effect.[31] Montana later attempted to ban TikTok statewide, and in 2024, President Biden signed a federal law forcing TikTok’s Chinese parent company, ByteDance, to sell or cease operations in the United States.[32] Supporters defended the law as a data privacy safeguard;[33] opponents view it as a disguised speech restriction.[34]
Meanwhile, over a dozen states enacted laws restricting minors’ access to social media and targeted “addictive” design features.[35] Presently, courts are deciding whether these measures infringe on free expression or fall within states’ traditional police powers.[36] California took a different approach in 2022 and required platforms to disclose their content moderation policies.[37] When X challenged the law, a federal court upheld it and ruled that the disclosure requirement promoted transparency without compelling speech or restricting content.[38] These state laws highlight the growing desire to hold private platforms accountable, but they also reveal how the First Amendment limits direct government control over private moderation practices.[39]
Private Power Over Public Speech.
The Constitution restrains the states, but private platforms regulate most of the nation’s expressive life.[40] The private companies determine what speech is amplified, suppressed, or monetized.[41] They enforce age restrictions. Utah and Arkansas’s parental consent laws mirror platform-driven initiatives like Instagram’s screen-time limits.[42] The private platforms remove misinformation, hate speech, or nudity under their community guidelines.[43]
This question parallels debates globally.[44] In the European Union, the “Right to be Forgotten” law allows individuals to request that search engines delete personal information.[45] The United States courts consistently rejected similar claims.[46] In Florida Star v. B.J.F. and Martin v. Hearst Corp., courts held that laws requiring the removal of truthful information violate the First Amendment as impermissible prior restraints.[47] Free expression remains paramount;[48] even when it collides with privacy or reputation interests.[49]
The Government–Platform Nexus: Murthy v. Missouri.
The Supreme Court’s recent decision in Murthy v. Missouri marks the next stage of this debate.[50] Plaintiffs alleged that federal officials coerced social media platforms into suppressing posts related to COVID–19 and election integrity, amounting to government-orchestrated censorship.[51] The Court ultimately dismissed the case on standing grounds, but it emphasized that First Amendment violations require strong factual records linking government acts to suppression of speech.[52] Justice Alito’s dissent warned of the dangers of subtle government “pressure campaigns” that turn private moderation into state censorship by proxy.[53]Murthy leaves open a critical constitutional question: when does cooperation between the government and platforms become unconstitutional coercion? This is a gray area. The public influence meets private control as digital speech regulation grows more complex, and this will shape the next generation of First Amendment law.[54]
Conclusion
The First Amendment was written for a world of printing presses and town squares, not algorithms and app stores. The First Amendment’s core purpose is to preserves open debates and limit state control over expression.[55] This remains as vital as ever.[56] Today, more speech moves to private public platforms, and more of those companies determine what “free speech” means in practice.[57] Courts resist expanding constitutional duties to private entities and prefer to leave reform to Congress.[58] But as social media platforms govern public discourse for billions, the line between private and public power continues to erode.[59] The future of free speech depends less on government restraint and more on the transparency, fairness, and accountability of the private actors who now host our democracy’s conversation.[60] So, who guards the digital public square? Until the law adapts, corporate policy, algorithms, and private platforms’ community guidelines draw the boundaries of free expression because the Court and Congress refuse.[61]
[13] Nott, supra note 2 (quoting TikTok’s community guidelines, “We do not allow any hateful behavior, hate speech, or promotion of hateful ideologies. This includes content that attacks a person or group because of protected attributes.”).
[20] Knight First Amend. Inst. v. Trump, 302 F. Supp. 3d 541 (S.D.N.Y. 2018), aff’d, 928 F.3d 226 (2d Cir. 2019), cert. granted, judgment vacated sub nom. Biden v. Knight First Amend. Inst. At Columbia U., 141 S. Ct. 1220 (2021).
In 2019, a plea agreement was reached on the eighth floor of the Durham District Attorney’s office. Donald Fields Jr. murdered his father three years prior over a seemingly innocuous fight about the placement of the TV.[1] After consulting from the family, the parties agreed that Fields would plead guilty to second-degree murder and receive a 20-year minimum sentence.[2] The Assistant District Attorney handling the case, Kendra Montgomery-Blinn, took the first step toward restorative justice. She asked Alex Fields, the victim’s brother and the offender’s uncle, if he would like to read the psychological evaluation of Fields that the defense had prepared. Alex read the report detailing Fields’ anger management issues, lack of mental maturity, history of witnessing violence, and recent violent propensities.[3] Alex said that “it read true”; he didn’t “want to lose him [] to the system.”[4] Alex agreed to a restorative justice alterative—one sanctioned by a court but not within one.[5] Over the next four years, the family participated in restorative justice circles where they discussed the effect of Donald’s actions.[6] At first, the family participated in the circle without Fields while Fields received therapy during his pre-trail incarceration. Fields eventually joined the circle and conversation began to unfold.[7] Over time, the family felt that Fields had changed and taken accountability; they felt that sufficiently healed and that Fields could return home.[8]
Restorative Justice (RJ) programs and techniques have been making their way into the American criminal justice system for over three decades.[9] As of 2020, 264 total laws had been passed in 46 jurisdictions spanning 45 states and the District of Columbia.[10] There is, however, a stark lack of uniformity across jurisdictions as they legalize restorative justice.[11] Leading scholars in the field warn that “in present form, restorative justice cannot be viewed as a panacea for all the ills that plague the criminal justice system.”[12] The incorporation of RJ in the criminal system is still in its infancy, and many questions remain unanswered. One of the largest, perhaps, is whether RJ processes should be used for violent crimes, such as homicide. As proponents of legalizing RJ continue their research and incorporation efforts, violent crimes should be included in RJ because the need for and benefits of these alternatives are especially crucial for the individuals affected by violent crime.
Restorative Justice does not offer a uniform blueprint to criminal justice reform; rather, it employs a “radically different way of viewing, understanding, and responding to the presence of crime within our communities.”[13] It is an alternative approach. The retributive criminal justice approach serves justice by punishing the offender. In contrast, the restorative justice approach serves justice by healing the individuals—both victim and offender. [14] The umbrella of RJ covers a variety of techniques, philosophies, and practices; but there is no universal theory of restorative justice or agreed upon method of enacting it.[15] In the criminal context, however, it typically involves a meeting or series of meetings between the stakeholders where the offender expresses remorse and the victim has the opportunity to the heard.[16] As a group, a set of actions are decided upon that could “repair the harm and prevent re-offending.”[17]
One version of this approach that has been used in the United States since the late 1980s is Victim-Offender Mediation (VOM) programs. VOM aims to provide victims the chance to confront the person that harmed them and participate in the process of reaching a restitution agreement. VOM allows the offender an opportunity to acknowledge the harm they caused and express true remorse.[18]
Traditionally, the goal of VOM programs was to reach a restitution agreement, but a more recent “humanistic” VOM approach re-orients the goal to be healing for all parties.[19] This new approach—falling squarely within RJ principles—resulted in the Victim Sensitive Offender Dialogue (VSOD) model. The VSOD model has three phases.[20] First, all parties involved are consulted on multiple occasions as to whether mediation could be a possibility.[21] If all parties agree to participate in mediation, then an agreement is made between the parties regarding the expectations of the mediation.[22] Second, an actual dialogue between the parties occurs, including a pre-dialogue briefing and a post-dialogue de-briefing.[23] Third, the facilitators meet with the parties to discuss any needs that were not met, collect feedback, and hopefully close the case.[24]
VOM is typically used in violent criminal cases post-conviction to achieve therapeutic goals for victims and offenders.[25] The general trend across the country is to exclude more violent crimes—like domestic violence and homicide—from RJ processes.[26] Post-conviction VOM and similar RJ practices, however, result in higher reports of victim and offender satisfaction after serious violent crimes.[27] This indicates that VOM and similar practices have potential to improve victim and offender experiences during earlier stages of litigation.
Some proponents of providing RJ alternatives in cases of serious crimes argue that this is a space where restorative justice is crucially needed.[28] Violent crimes, due to their nature, can result in increased shame for both parties.[29] RJ practices provide a path for the offender to take responsibility for their actions and rely on their community to hold them accountable. This can often transform the offender’s shame into something more productive.[30] RJ can also help victims process common feelings of was this my fault by giving them space to express those emotions.[31]
Another success of RJ is the potential to deliver a result that feels more just. When a violent crime has occurred, the need for “fairness” in the process of delivering justice is crucial.[32] A foundational principle of RJ is respect for the parties throughout the process.[33] The voluntary nature of participation, opportunity to be fully heard, and reliance on mutual agreement for reconciliation maintain the dignity of participants and ensure transparency in the process.[34] Research shows that people who have participated in RJ processes felt they were more “fair and legitimate” than criminal court processes.[35]
Efforts to incorporate RJ into the criminal system have primarily focused on low-level, nonviolent crimes.[36] While there are legitimate concerns to including serious crimes in this effort, the victims and offenders of violent crimes should not be forgotten in restorative efforts. Instead, the activists, scholars, legislators, and jurists that are currently shepherding RJ through its infancy in our criminal system must keep its applicability to violent offenses front of mind. Alex Jones will never fully recover from the grief of losing his brother. But because one District Attorney believed that Don was worthy of a RJ alternative, Jones didn’t have to lose his nephew in addition to his brother. Instead, Jones was empowered by the chance to heal his family.
[13] Mark S. Umbreit et al., Restorative Justice: An Empirically Grounded Movement Facing Many Opportunities and Pitfalls, 8 Cardozo J. Conflict Resol. 511, 518 (2007).
[14] Linday Fullham et al., The Effectiveness of Restorative Justice Programs: A Meta-Analysis of Recidivism and Other Relevant Outcomes, 00 Criminology & Crim. Just. 1, 2–3 (2023).
In 2025, Utah passed House Bill 77 (“HB 77”) without the Governor’s signature. HB 77, a controversial bill, is the first in the nation to ban non-sanctioned flags[1] from all public schools and government property. HB 77’s professed goal is to make classrooms neutral spaces but the bill’s sponsor “repeatedly constructed the bill to specifically ban pride flags in schools.”[2] Several key legal issues arise as to the constitutionality of HB 77 including but not limited to the First Amendment,[3] school speech doctrines, the Equal Protection Clause, and compelled neutrality versus speech suppression.
Historically, the Supreme Court utilizes different tests for determining if actions are unconstitutional.[4] One First Amendment test has distinguished between government and private speech.[5] A central question in determining the type of speech, one must first determine whose speech is HB 77 affecting? Even then, courts may determine that allowing certain symbols while banning others is discriminatory. Further legal analysis is required to compare which type of test the Supreme Court may utilize for this issue and if HB 77 would qualify as unconstitutional.
The School Speech Doctrine is a series of cases the Supreme Court decided that allow schools to regulate speech without violating the First Amendment.[6] Under the Hazelwood standard, schools can regulate speech in school sponsored activities if their actions are reasonably related to legitimate pedagogical concerns.[7] Thus, schools have greater deference to regulate speech that appears to be part of a school’s curriculum. Here, it is difficult to ascertain if HB 77 falls within any of the school speech doctrine standards. Additional case law is needed to determine when the action taken in HB 77 is protected or unconstitutional.
The HB 77 also implicates the Fourteenth Amendment. The Equal Protection Clause under the Fourteenth Amendment in part states “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”[8] HB 77 must have disparate impact or animus towards LGBTQ+ students or staff to be successful under this claim. Parties must also show they are part of a protected class, but generally courts are hesitant to allow claims that involve facially neutral policies.[9]
In a legal and philosophical framework, tensions arise when faced with the issue of neutrality versus censorship. Critics argue that there is a selective enforcement of neutrality that disproportionality affects minority groups.[10] To further agitate this issue, a potential loophole in HB 77 exists. Historic flags used in school curriculum, such as a Nazi or Confederate flags, may be permissible.[11] Additionally, lawmakers in Arizona, Alaska, Florida and North Carolina have recently introduced similar bills.[12] Idaho has also passed a similar ban—HB 41.[13]
Ultimately, several legal issues questioning the constitutionality of Utah’s HB 77 and other similarly worded bills persist. Related issues extend much further than flag bills and can include a student’s appearance, speech inside classrooms, transgender rights in sports, and bans on gender-affirming healthcare.[14] Both the U.S. Supreme Court and lower courts have ruled on both sides of the isle. For example, in United States v Skrmetti, the Supreme Court upheld a Tennessee law banning gender-affirming care and medical treatments for transgender minors.[15] Whereas the Supreme Court still has cases challenging transgender rights in sports under review.[16] During this interim, Utah’s Governor has suggested that HB 77 should be repealed because it creates a cultural war that doesn’t “solve problems [the bill] intends to fix.”[17]
[1] HB 77 states, in part, that it “prohibits a government entity or employee of a government entity from displaying a flag in or on the grounds of government property except certain exempted flags” and does not apply to the following exceptions: (a) official flag of the United States, (b) the official Utah state flag, (c) the official flag of another country or state, (d) a flag representing a city or official municipality, (e) a flag for an official branch of the U.S. military, (g) a flag representing an Indian tribe, (h) an official flag of a college or University, (i) historic versions of a flag, (j) an official public school flag, (k) official flag of the United States Olympics.” H.B. 77, 2025 Gen. Sess. § 3 (Utah 2025).
[3] U.S. Const. amend. I. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Id. (emphasis added).
[5]See Shurtleff v. City of Bos., 596 U.S. 243, 260 (2022).
[6] Broadly this includes 3 categories including the Tinker, Fraser, and Hazelwood standards. See generally Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 515 (1969); Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 688 (1986); Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 277 (1988).
[9]See generally Bostock v. Clayton Cnty., Georgia, 590 U.S. 644, 684 (2020).
[10] The Utah Pride Center expressed a similar view in relation to Utah’s HB 77 quoting “it is a deliberate attempt to erase LGBTQIA+ visibility from the public sphere.” Addy Baird, Pride flags banned from Utah schools and government buildings—if Gov. Cox agrees with lawmakers, THE SALT LAKE TRIBUNE (Mar. 6, 2025, 2:00 PM), https://www.sltrib.com/news/politics/2025/03/06/pride-flags-banned-utah-schools/.
[13] H.B. 41, 2025 Leg., First Reg. Sess. (Idaho 2025).
[14] Dara E. Purvis, Transgender Students and the First Amendment, 104 B.U. L. REV. 435, 502 (2024).
[15] United States v. Skrmetti, 145 S. Ct. 1816, 1838 (2025).
[16] The Fourth Circuit found a law in West Virginia banning transgender women from participating on women’s sports teams as being unconstitutional under Title IX. See B.P.J. v. West Virginia, 98 F.4th 542 (4th Cir. 2024), cert. granted, No. 24-43 (2025).
On October 7, 2025, the United States Supreme Court heard oral argument on whether Colorado’s law banning conversion therapy violates the First Amendment. The Court’s conservative majority seemed eager to strike down Colorado’s law, a decision that would endanger similar laws enacted in over twenty other states. However, there is still hope. Even if the Court strikes down Colorado’s law, State governments, Congress, and individual citizens retain alternative means of challenging conversion therapy.
Conversion therapy, also referred to as Sexual Orientation Change Efforts, is a set of practices aimed at changing an individual’s sexual orientation or gender identity.[1] Most often, practitioners conduct conversion therapy through talk therapy, or a combination of talk and aversion therapies.[2] Whatever form it takes, conversion therapy is ineffective; sexual orientation and gender identity are fundamental and fluid parts of human nature that cannot be “corrected.”[3] Furthermore, when society pathologizes non-conforming sexual orientations and gender identities, queer people suffer.[4] Unsurprisingly, people who undergo conversion therapy in their youth face significantly increased risks for attempted suicide, depression, self-harm, substance abuse, anxiety, and social isolation.[5] Minors are especially vulnerable to conversion therapy harms, reporting nearly double the rates of suicidal ideation and depression.[6] In response to the well-documented dangers this treatment poses, numerous states enacted laws banning conversion therapy for minors.[7]
Despite medical and academic consensus, many therapists continue to practice conversion therapy, challenging bans. This includes Kaley Chiles, a Colorado-licensed therapist who claims the law violates her First Amendment right to freedom of speech.[8] The claim that conversion therapy bans violate therapists’ rights to free speech is at the heart of the legal dispute.[9] The First Amendment protects individuals from government interference in their right to express themselves.[10] This, however, does not mean those with professional expertise can use speech as a means of delivering substandard or harmful care.[11] The challenge then lies in determining whether conversion therapy should be classified as protected speech or as conduct. Regulations that target protected speech are subject to strict scrutiny, which is often the kiss of death for such laws.[12] However, if a law only targets conduct with an incidental burden on speech, it is subject to lesser scrutiny.[13]
In light of this, Chiles filed a lawsuit against Colorado in the Colorado District Court.[14] Chiles’s argument hinges on the fact that her therapeutic practices are verbal, so a law banning her from performing this therapy impedes on her freedom of speech.[15] Conversely, Colorado contends that its statute does not violate Chiles’s right to free speech, because it only regulates her performance of a specific treatment, regardless of the treatment’s vehicle.[16]
The Colorado District Court upheld Colorado’s ban on conversion therapy, ruling that the law regulated conduct rather than speech and, on appeal, the Tenth Circuit affirmed.[17] These courts ruled that Colorado’s law did not infringe on the First Amendment because it merely prohibited the conduct of attempting to change someone’s sexual orientation or gender identity, not the speech used in therapeutic settings.[18] The court emphasized that the law applied only to professional conduct, not to the broader array of speech in the public sphere.[19] Unsatisfied, Chiles petitioned for certiorari Supreme Court, which seemed largely sympathetic to Chiles’s position.[20]
Suppose the Tenth Circuit’s decision in Chiles v. Salazar stands and Colorado’s conversion therapy ban is upheld. In that case, it will set a significant precedent in favor of state-level regulation of professional conduct. However, even if the Supreme Court rules that conversion therapy bans are unconstitutional, other avenues exist to protect queer youth from the harms of conversion therapy.
One promising way legislatures could reduce First Amendment challenges is to label conversion therapy as a fraudulent practice. Then, legislatures could include conversion therapy in a larger ban on fraud. In fact, this alternative is well on its way to fruition. On May 5, 2025, Representatives Ted Lieu and Cory Booker introduced the Therapeutic Fraud Prevention Act (TFPA) in the House of Representatives.[21] The TFPA targets conversion therapy as a commercial activity, whereas other conversion therapy bans (like Colorado’s) regulate it as a medical procedure.[22] This change is significant because it allows States to circumvent the First Amendment issues raised by challengers like Kaley Chiles. After all, fraud regulations address commercial activity without regard for the distinction between conduct and pure speech.[23] Therefore, under the TFPA, therapists who claim to “treat” sexual orientation or gender identity would be subject to civil penalties.[24] Additionally, the TFPA’s labeling of conversion therapy as fraud creates a civil violation imposable by the federal government and a private right of action and legal remedies for individual plaintiffs.[25] Thus, the TFPA expands recourse for victims of conversion therapy and states seeking to regulate the practice.
The legal battle over conversion therapy bans, as exemplified by Chiles v. Salazar, underscores the tension between protecting public health and safeguarding constitutional rights. While the Supreme Court’s ruling on the case could set a critical precedent for state-level regulation of harmful professional conduct, it is essential to recognize that alternative legislative avenues, such as the Therapeutic Fraud Prevention Act, may offer a pathway to circumvent First Amendment challenges. Even if the Court rules against conversion therapy bans, these legislative efforts could provide renewed protections for minors by framing conversion therapy as a fraudulent practice rather than a legitimate therapeutic method. Ultimately, the ongoing legal battle against the dangers of conversion therapy highlights the importance of the collective struggle for LGBTQ+ rights. Continued advocacy and creative legislative solutions are essential in this political moment.
[1] M. Williams, Conversion Therapy on LGBTQ+ children as a Form of Torture and the Rights of the Child in the Face of the United States Constitution’s Free Speech and Religious Free Exercise Clauses, 26 J. Gender Race & Just. 393, 393 (2023).
[25] Jordan Hutt, Note, Anything but Prideful: Free Speech and Conversion Therapy bans, State-Federal Action Plans and Rooting out Medical Fraud, 92 Fordham L. Rev. 255, 283 (2023).
Technology is a fast-changing and elusive reality of today’s society. In recent years, Artificial Intelligence (AI) has made its way into the general population’s lives.[1] AI is a technology involving computer systems that perform complex tasks like reasoning, decision-making, or solving problems traditionally done by humans.[2] Common examples used by the general public include ChatGPT, Google Translate, and Apple’s Siri.[3] As these programs become more ingrained in the lives of average individuals, there is a question of how this new technology will affect the judicial system. The question is whether these AI programs will integrate into existing electronics, specifically regarding criminal harassment and stalking laws.
On the federal level, the use of electronic communication systems with the intent to harass or intimidate another individual is criminalized.[4] Accordingly, 18 U.S.C. § 2261 includes interactive computer service or electronic communication system, but artificial intelligence is notably absent.[5] State governments are becoming more aware of the gaps in AI legislation.[6] In the 2025 legislative session, all 50 states, Puerto Rico, the Virgin Islands, and Washington, D.C., have introduced legislation on the topic.[7] Notably, North Dakota’s new law prohibits individuals from using an AI-powered robot to stalk or harass other individuals, expanding current harassment and stalking laws.[8] These state efforts serve as important models for others to follow. State governments can lead the way in tackling these rapidly evolving issues by ensuring that technological progress does not compromise personal safety.
The mens rea element of intent is critical to stalking and harassment charges. True threats of violence lie outside the bounds of the First Amendment’s protection.[9] The State is not required in these instances for the defendant to have had any more specific intent to threaten the victim.[10] But the State must prove the defendant had some understanding of their statements’ threatening character.[11] The analysis becomes more complicated when no “true threat” exists. Furthermore, it becomes more unclear when electronics are used as the primary way of stalking and harassment.
The Supreme Court previously addressed electronic means of communication that were allegedly used to stalk and harass a victim.[12] The case, Counterman v. Colorado, involved an individual’s Facebook posts concerning his soon-to-be ex-wife, police officers, and an FBI agent.[13] The Court held that the statute’s mens rea element requires proof that a defendant transmits communication to threaten, or with knowledge it will be viewed as such threat.[14] To establish criminal liability, a defendant must have the subjective intent that the transmitted communication contained a threat.[15] The Court reversed the lower court’s decision and decided the jury instructions were an error.
If AI software falls under “interactive computer service or electronic communication service,” would subjective intent still matter if delivered via third-party software?[16] What burden must the government prove to meet the same standard used by social media and electronic communications?
While AI and its impact on criminal litigation are uncertain, the same does not apply to potential product liability and tort claims. In Garcia, a mother filed several claims on behalf of her deceased son against AI-software creators.[17] Additionally, the lawsuit named Google as a defendant because the software creators first worked as engineers there.[18] The plaintiff’s son, suffering from an anxiety and mood disorder, had become addicted to Characters imitating fictional persons created initially by Character A.I.[19] The addiction worsened until he tragically took his own life, just minutes after his final communication with the AI Character.[20] The defendant moved to dismiss the claims. However, the court only granted the dismissal of the intentional infliction of emotional distress claim because the mother lacked standing.[21]
Moving forward on appeal, defendants will need to argue that large language models function more like services rather than physical products.[22] The defense’s key argument is that AI software functions similarly, so strict liability should be applicable.[23] Tech companies must now consider that AI systems could be scrutinized not only as expression tools but also as potentially dangerous products.[24]
Technological advancements over the past few decades have had an immense impact on younger generations.[25] As technology and AI grow and society adapts, the judicial system will face pressure to determine liability, criminal or not. These pressures could give vulnerable individuals additional chances for judicial remedies. These pressures might also prompt AI software developers to enhance safety measures to lower liability risks. While criminal liability for stalking and harassment using AI might seem distant, product liability and tort claims are not. Ultimately, how society tackles the gaps in AI legislation will influence the legal options available to plaintiffs and the ethical limits imposed on AI developers.
Vermont’s housing shortage is no longer a future concern; it is a present crisis. Across the state, rental vacancies hover near zero, and home prices have soared beyond the reach of working Vermonters.[1] Yet even as the state pours millions into affordable housing initiatives, local zoning ordinances often stand in the way of building the homes that Vermont needs. Vermont’s land use provisions, designed to preserve scenic beauty and small-town identity,[2] now serve as a barrier to urgent housing needs.
The resulting tension between local control and statewide necessity defines Vermont’s affordable housing debate. While state lawmakers have passed legislation like S.100 (2023) to streamline housing development, the patchwork of municipal zoning codes under Title 24, Chapter 117 of the Vermont Statutes still dictates who gets to live where.[3] The state’s deep commitment to home rule and environmental preservation, though admirable, risks reinforcing class and racial segregation through law.[4]
Under Vermont’s Municipal and Regional Planning and Development Act, each town wields broad power over land-use decisions.[5] These local bylaws, often drafted by volunteer planning commissions, determine minimum lot sizes, density caps, and permissible housing types.[6] In theory, this allows communities to tailor growth to local needs. In practice, however, these bylaws often restrict affordable housing. For example, large-lot zoning in rural areas effectively excludes multifamily units and raises per-unit costs. Scholars have long identified this phenomenon as exclusionary zoning: a system in which seemingly neutral land-use regulations yield exclusionary outcomes by making housing unaffordable or inaccessible to lower-income residents.[7]
The Supreme Court cemented this framework in Village of Euclid v. Ambler Realty Co., where the Court upheld a zoning ordinance that segregated land uses in the name of order and aesthetics.[8] While Euclid’s rationale still anchors modern zoning, it has evolved into a tool of exclusion. The same logic that once protected residential tranquility now enables towns to reject the duplex next door.
Vermont’s strong environmental laws, especially Act 250, amplify this tension.[9] Enacted in 1970 to regulate large-scale development and protect natural resources, Act 250 requires detailed environmental review for most new projects.[10] Although it remains a cornerstone of Vermont’s environmental identity, critics argue that it unintentionally limits affordable housing construction by adding cost, delay, and uncertainty.[11]
Similarly, wastewater and septic regulations under Title 10 often limit higher-density housing even in suitable areas.[12] The paradox is striking: laws meant to preserve Vermont’s rural charm now contribute to its demographic decline. Vermont has preserved its landscape but priced out its people.
Recognizing these barriers, the Legislature passed the so-called “HOME Act” to reduce municipal gatekeeping.[13] The Act mandates that certain municipalities allow duplexes or triplexes in residential districts previously zoned only for single-family homes.[14] It also requires towns with designated downtowns or village centers to ease parking and lot-size restrictions and accelerates permitting for infill housing.[15]
Yet even this modest reform sparked intense backlash from local officials and residents, who viewed it as a serious threat to Vermont’s tradition of town control.[16] The debate exposed the fragility of Vermont’s home-rule ethos: when statewide needs collide with local autonomy, even minor reforms can trigger constitutional anxiety.[17]
From a policy standpoint, S.100 is progress. From a structural standpoint, it may be too little. Without a deeper rethinking of how local zoning power interacts with state goals, Vermont’s housing crisis will persist as a legal, not just economic, problem.
Many Vermont municipal zoning codes emphasize the importance of maintaining a town’s existing character. While the phrase character of the area appears neutral, scholars argue that community-character zoning operates as a subtle form of exclusion in land-use regulation.[18] Courts generally defer to local boards’ interpretations of character, rarely demanding evidentiary rigor.[19] This deference compounds structural bias: older, wealthier residents dominate public hearings, while renters, young families, and newcomers are rarely present.[20] The process thus replicates inequity under the guise of deliberative democracy.
Here, principles like facilitated dialogue and collaborative problem-solving could improve procedural equity in zoning processes.[21] Vermont’s existing mediation culture suggests a path for designing inclusive zoning deliberations that reduce the adversarial tenor of public meetings.[22] Just as mediation fosters understanding between disputants, structured facilitation may help bridge tension between ‘growth’ and ‘preservation.’
Vermont is hardly alone in grappling with exclusionary zoning. Oregon’s HB 2001 preempts local zoning to legalize “missing middle” housing statewide.[23] Massachusetts’ MBTA Communities Act links transit-oriented zoning compliance to state funding, pressuring municipalities to allow multifamily development.[24] California’s ADU reforms override local bans on accessory units entirely.[25]
Each model narrows the scope of local control in favor of statewide equity; a principal Vermont resists. As housing scarcity worsens, Vermont may have to adopt similar measures. Preemption need not mean abandoning Vermont’s participatory culture; it can mean redefining participation to include those historically excluded by process itself.
Vermont prides itself on community, yet its zoning laws too often privilege nostalgia over need. “Preserving character” should not mean preserving exclusion. A modern interpretation of Vermont’s land-use ethos would recognize that diversity is part of the state’s character.
State laws can no longer treat housing as a purely economic good or zoning as a purely local affair. Act 250 must expand to include housing justice; the future of Vermont’s landscape, and its communities, depends on it.
[2] 10 V.S.A. § 6086(a)(8) (2025) (“intended to preserve the aesthetics or scenic beauty of the area”).
[3]An Act Relating to Housing Opportunities Made for Everyone (HOME Act), 2023 Vt. Acts & Resolves 47; 24 V.S.A. §§ 4382(a)(1)–(2), 4411(a) (2023) (empowering municipalities to determine land-use patterns, residential density, and population distribution through planning and zoning bylaws).
[17]See Duffort, supra note 17 (discussing legislative resistance rooted in concerns over municipal autonomy); see also Berlin, supra note 17 (noting resident fears that infrastructure would bring unwanted state-driven housing growth).
[18]See Michael Lewyn, The Case Against the Case for Zoning, 35 Geo. Envt’l. L. Rev. 249 (2023).
[19]In re Appeal of JAM Golf, LLC, 185 Vt. 201 (deferring to zoning board’s interpretation of “character of the area” standard).
[20]See Sara C. Bronin, Zoning by a Thousand Cuts, 50 Pepp. L. Rev. 719, 761–62 (2023).
[21] Anika Singh Lemar, Overparticipation:Designing Effective Land Use Public Processes, 90 Fordham L. Rev. 1083, 1118 (2021).
[22] Patrick Field, Kate Harvey, & Matt Strassberg, Integrating Mediation in Land Use Decision Making, Land Lines Jan. 2009.
Generative artificial intelligence (GAI) is currently ubiquitous in the news and in the wider public discourse. Conversations range from optimistic speculation about how GAI can help humans to the pessimistic predictions of robot overlords taking charge—ok, the latter may just be the science fiction readers.[1] There is no doubt, however, that most people who are thinking seriously about using GAI recognize both its potential benefits and its potential dangers.[2] The legal profession is also currently exploring how GAI can both enhance representation of clients and raises concerns that lawyers must consider.[3]
This blog post examines lawyers’ adoption of GAI first through the lens of the American Bar Association (ABA) Standing Committee on Ethics and Professional Responsibility’s Formal Opinion 512 (the “Opinion”).[4] It then considers Everett M. Rogers’s innovativeness and adopter categories. Finally, this blog post argues that most lawyers should take the early majority or late majority approach to AI rather than seeking to be innovators or early adopters.[5]
Opinion 512, issued in 2024, uses the Model Rules of Professional Conduct to interpret the ethical responsibilities of lawyers who use GAI.[6] The Opinion states that lawyers’ responsibilities to their clients remain the same when using GAI as for other tools.[7] It then goes on to analyze how those responsibilities can be applied to the use of GAI in practice.[8] The Opinion discusses GAI in light of the duties of competence, confidentiality, communication with clients, supervision of non-lawyers, advancing meritorious claims, candor toward the tribunal, and charging reasonable fees.[9] This blog post will focus on the three duties of competence, confidentiality, and supervision.
One common area of concern for attorneys using any kind of technology is the duty of competent representation, which “requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”[10] Although technology is not mentioned in the text of the rule, Comment [8] notes that keeping up with technology is part of the requirement of competence.[11] The fast-changing nature of GAI may make this requirement more difficult, such that the Committee on Ethics and Professional Responsibility recommends consulting with technology experts, if needed, for help understanding the abilities and risks of a GAI tool.[12] Whatever means are chosen to better understand GAI tools under consideration, lawyers must recognize that they are accountable for the results those tools generate.[13]
Lawyers who use GAI must also ensure that they do not compromise clients’ confidential information.[14] The way that GAI develops and learns from past data also makes this responsibility more difficult.[15] Submitting one client’s information to a GAI tool may inadvertently lead to the disclosure of that information when the tool is used by another employee in the law firm, or even a person in a different firm who uses the same tool.[16] This can lead to an ethical temptation for lawyers—GAI tools that are built to protect client data will most likely be proprietary tools, which tend to cost more.[17] The motivation to keep costs down by using less expensive or free tools could lead to a costly result if client information is inadvertently disclosed.
Another area of obligation that lawyers must consider with GAI is the duty to supervise subordinate lawyers and non-lawyers.[18] Opinion 512 focuses on how this might impact required training of firm employees and considerations when hiring outside services.[19] A recent webinar presentation went further by describing AI as a “legal assistant.”[20] If firms begin to use GAI in the role of legal assistant, the nature of GAI may complicate the supervisory responsibilities of lawyers. Computer scientist Josephine Wolff noted that one of the differences between past technologies and GAI is the relative inability to predict what results a GAI tool will produce, even with extensive testing.[21] If attorneys and firms rely on a technology that produces unpredictable outcomes, they must consider instituting robust review procedures before making use of the work generated.
Competence, confidentiality, and supervision are all ethical duties of an attorney that may be complicated by using GAI.[22] Both GAI’s status as a newly evolving technology and its unpredictable nature require lawyers to exercise care in using this technology while still fulfilling their ethical obligations.[23] For these reasons, it may benefit lawyers who wish to use GAI to take a slower, deliberate approach to adopting this innovation in practice.
In Diffusion of Innovations, communications professor Everette M. Rogers considers how people react to new ideas and technologies and how innovations spread.[24] Within his work, Rogers describes five “ideal types” of “adopter categories,” or groups of people classed by the rate at which they are likely to embrace a new idea or technology.[25] The adopter categories are innovators, early adopters, early majority, late majority, and laggards or late adopters.[26] The categories range from those who not just adopt but seek out innovations to those who are the last to adopt an innovation, often well after it is an accepted practice within a community.[27] The position of this blog post is that most lawyers who are interested in GAI should wait to adopt it as part of the early majority or late majority.
The “majority” titles in both early majority and late majority provide one reason for taking this approach. In Rogers’s characterization, each of these categories make up about one-third of members in a community, so the two categories together make up two-thirds.[28] This means that once early majority and, especially, late majority adopters take on an innovation, it has gained wider acceptance within the community. This wider acceptance usually comes with more infrastructure, such as multiple options for well-developed tools and more resources for understanding the technology. More well-developed GAI tools may include a variety of options designed specifically for the practice of law, with safeguards related to confidentiality and supervision built in. More professional development resources will make it easier for lawyers to use GAI in a competent way. Rogers also shows a correlation between earlier adoption and a greater tolerance for risk and uncertainty.[29] In general, the ethical obligations of lawyers require reducing risk, such as ensuring the required knowledge of law, taking measures to avoid inadvertent disclosure of confidential information, and taking responsibility for the actions of subordinates.[30] Taking a later adoption mindset towards GAI naturally lowers the potential risk threshold for eventual adoption. Finally, there is a correlation between larger financial resources and earlier adoption.[31] For those who are solo practitioners or in small firms on a tight budget, waiting for the infrastructure to develop around GAI may make financial sense.
It should be noted that the innovator adopter category ideal types are descriptions of how people behave within a community.[32] While it makes sense for many lawyers to wait before adopting GAI, the innovators and early adopters within the legal community will pave the way for later adopters. Still, for those lawyers who are either worried about GAI taking their jobs or worried about the risks GAI poses, the recognition that a slower approach to innovation is a normal part of most innovation cycles may quiet fears about “keeping up.” Choosing to take a more deliberate approach will also empower lawyers to explore GAI tools in a manner that best upholds their ethical obligations.
[1]See,e.g., David Martin, AI in the Military: Testing a New Kind of Air Force, CBS NEWS (Oct. 5, 2025), https://www.cbsnews.com/news/ai-in-the-military-testing-a-new-kind-of-air-force/; For an example of a compelling science fiction novel in which an AI character both destroys and protects human life (sometimes at the same time), see Amie Kaufman & Jay Kristoff, Illuminae (2015).
[21] Josephine Wolff, Professor of Cybersecurity Pol’y & Comput. Sci., The Fletcher Sch., Tufts Univ., Panel on AI and the First Amendment at Vermont Law Review Symposium: Free Speech on Trial (Oct. 4, 2025).
[22] ABA Standing Comm. on Ethics & Pro. Resp., supra note 3, at 14–15.
The federal estate tax has long stood at the intersection of wealth, fairness, and public policy. When Congress first enacted the tax in 1916, it was rooted in a progressive ideal—ensuring the wealthiest Americans contributed to the public good and curbing the concentration of dynastic wealth that threatened democratic institutions.[1] Over a century later, the law’s structure and effect have drifted far from that purpose. Today, fewer than one in a thousand estates pay any estate tax at all.[2]
The original estate tax, created under the Revenue Act of 1916, imposed a base rate of one percent and a top rate of ten percent on estates over $5 million, with an exemption of $50,000.[3] By 1976, rates ranged from 18 to 77%, and the exemption had fallen to $60,000.[4] This steep progressivity reflected a belief that inherited wealth should serve the public rather than accumulate unbounded.
The trend reversed in the late twentieth century. The Tax Cuts and Jobs Act of 2017 (TCJA) lowered the top rate to 40% and doubled the unified gift and estate tax exemption to roughly $14 million.[5] The One Big Beautiful Bill Act (OBBBA) of 2025 then made both provisions permanent and indexed the exemption for inflation.[6] These changes dramatically shrank the number of taxable estates—from about 50,000 in 2001 to roughly 4,000 in 2023.[7] The Internal Revenue Service notes that the proportion of estates subject to tax is now the smallest in the law’s history.[8]
Although the estate tax was designed to be progressive, its modern structure produces the opposite effect. For 2025, the exclusion is $13.99 million per individual, rising to $15 million in 2026.[9] The top statutory rate remains 40%,[10] but because of the bracket structure, the effective rate declines for ultra-large estates. Analysts at the Brookings Institution describe this as a “regressive inversion,” where billion-dollar estates face a smaller proportional burden than smaller taxable estates.[11]The fiscal consequences are striking. In 2023, total estate tax liability amounted to $24 billion—less in real terms than the $24.6 billion collected in 2007.[12] In short, as wealth inequality has soared, the estate tax has contracted in both reach and revenue.
A central reason for this erosion lies in the step-up in basis rule, first adopted in 1921.[13] When a decedent passes property to heirs, the basis of that property resets to its fair market value at the time of death. This means decades of unrealized capital gains vanish for tax purposes.[14] For the wealthy, this feature effectively eliminates capital gains taxation on inherited assets.
This “angel of death” loophole allows the ultra-wealthy to hold appreciated assets indefinitely, borrow against them tax-free during life, and pass them to heirs who owe neither capital-gains nor income tax upon sale.[15] Both the Congressional Research Service and the Congressional Budget Office (CBO) have found that the step-up in basis results in tens of billions of dollars in forgone annual revenue and deepens intergenerational wealth concentration.[16] Yet repeal is politically difficult. The CBO has cautioned that taxing unrealized gains at death could create liquidity problems for heirs inheriting illiquid assets such as farms or small businesses.[17]
Policy debates generally revolve around two levers: (1) lowering the exclusion or raising the rate, and (2) modifying or eliminating the step-up in basis. Each approach has tradeoffs. Reducing the exemption would raise revenue quickly but could burden family-owned enterprises that are “asset rich but cash poor.”[18] Conversely, taxing unrealized gains at death would target only the wealthiest estates but introduce administrative complexity.[19] Empirical analyses suggest that addressing the step-up rule would yield the most progressive results over time, while rate or exemption adjustments would have more immediate but politically contentious effects.[20]
A pragmatic reform would preserve the step-up in basis for small and middle-class estates—protecting family farms, homes, and closely held businesses—while sharply increasing the top marginal rate for ultra-wealthy households. A 77% rate on estates exceeding hundreds of millions or billions of dollars would affect only the richest 0.01% of taxpayers while restoring fairness and fiscal capacity.[21] Historical precedent supports this approach: during the mid-twentieth century, when the top estate-tax rate reached 77%, the United States experienced both strong economic growth and high social mobility.[22]
The goal is not to punish success but to ensure that inherited wealth contributes proportionally to public needs. As the Brookings Institution notes, a reformed estate tax could “limit the transfer of vast quantities of wealth through generations” and serve as an effective tool for equality and revenue generation.[23] Reform requires both legislative coordination and public framing. Success would depend on coalition-building among legislators, economists, and advocacy groups—including the Brookings Institution, the Tax Policy Center, and labor organizations—to counter predictable opposition from high-net-worth lobbying groups such as the U.S. Chamber of Commerce.[24]
Framing the issue around fairness and fiscal responsibility, rather than partisanship, may offer the best path forward. Restoring a truly progressive estate tax would reaffirm its original purpose: ensuring that wealth serves the republic, not the other way around.
[1] Darien B. Jacobson, Brian G. Raub, & Barry W. Johnson, The Estate Tax: Ninety Years and Counting, 27 Stat. Income Bull. 118 (2007).
[16] Gravelle, supra note 9; Change the Tax Treatment of Capital Gains from Sales of Inherited Assets, Congressional Budget Office (Dec. 7, 2022), https://www.cbo.gov/budget-options/58691.
The recent increase in electric-vehicle (EV) use shows a promising future for carbon-free transportation, but it also generates hazardous waste through end-of-life lithium-ion batteries.[1] By 2030, millions of tons of EV batteries will reach the end of their use, posing risks of combustion, soil contamination, and metal toxicity in drinking water if improperly managed.[2] From a legal perspective, addressing this challenge requires more than increased recycling infrastructure. It also requires up-to-date legislation and legal frameworks capable of governing transboundary waste management, producer responsibility, and circular end-of-life resource economies. The European Union and United States currently outline two distinct regulatory frameworks. The EU internalizes its waste industries and adheres to the goals of international legal frameworks such as the Basel Convention, while the U.S. resists the global shift towards circular economies and strays away from international cooperation.
The Basel Convention and the U.S. Enforcement Gap
Adopted in 1989, the Basel Convention establishes a global regulatory structure to ensure that hazardous waste is disposed of “in the State where [it was] generated.”[3] In 1999, the Basel Convention added a supplementary agreement, the Protocol on Liability and Compensation, which aimed to create a legal structure for accidents involving transboundary movement of hazardous waste.[4] The Protocol established a system which identifies global actors liable for environmental damage through improper waste dumping and ensures compensation for personal and property damage along with providing costs of preventive measures to stop improper waste dumping.[5] Basel also introduced a 2019 Ban Amendment which prohibits exports of hazardous waste from Organization for Economic Cooperation and Development (OECD) to non-OECD countries.[6] The Convention’s ultimate goal is for each State to have a sovereign right to ban foreign waste imports and take on a duty to manage waste in an environmentally conscious manner.[7]
The United States signed but never ratified Basel and therefore it is not bound by the Ban Amendment nor the 1999 Protocol on Liability and Compensation.[8] Instead, the U.S. relies on the Resource Conservation and Recovery Act (RCRA) as its primary document dictating hazardous waste management.[9] Under § 6938, RCRA permits hazardous waste exports pursuant to bilateral or OECD agreements, such as with Mexico or Canada.[10] RCRA requires exporters of waste to provide advanced notice and obtain consent from the receiving country, identifying the facility and shipment details.[11]
At the federal level, there is no statute specifically governing end-of-life EV batteries. The Environmental Protection Agency (EPA) regulates them under RCRA and the Universal Waste Program, which consolidates collection and transport of certain hazardous material to ease the “regulatory burden on . . . generators that wish to collect these wastes.”[12] Several states are beginning to adopt their own methods to waste management akin to those we see on a national scale. California created the Lithium-Ion Car Battery Recycling Advisory Group in 2018,[13] which helped set up statutory frameworks like the Responsible Battery Recycling Act of 2022, establishing producer-responsibility programs for batteries and battery-embedded products, signaling a gradual shift toward circular waste management.[14] While such state initiatives signal progress, the absence of a unified federal framework leaves the United States without the cohesive, circular model emerging in other major economies.
Under its current regulatory framework, the United States continues to perpetuate downstream disposal in developing countries while also participating in the global waste economy primarily as a producer; thus, undermining both the global environmental justice efforts and the economic opportunity of end-of-life material recovery markets.
The European Union Circulatory Framework
Within recent years, the European Union has embedded Basel’s principles within its legislative scheme. The Waste Framework Directive, amended in 2018, shifts EU waste policy from disposal toward resource recovery and reuse, establishing Extended Producer Responsibility (EPR) programs that make producers financially and operationally responsible for managing products at the end of their life cycle.[15] Recital (7) of the directive explicitly highlights the circular-economy objective of reducing dependence on imported raw materials and increasing recycling and recovery of pre-used resources.[16] Pertaining specifically to EV batteries, the EU’s Battery Regulation 2023/1542 executes these principles through enforceable lifecycle regulations for EV battery producers.[17] By 2031, EV batteries sold in the EU must contain minimum percentages of recycled cobalt, lithium, and nickel.[18] Each battery must also carry a digital “battery passport” disclosing its composition, recycled content, and carbon footprint.[19] In doing so, the EU is on its way to creating a cohesive, unified, legal model for greener circular waste economies, especially for end-of-life EV batteries; a system that contrasts sharply with the United States’ fragmented approach under RCRA.
Comparative Analysis
When viewed side-by-side, these regimes reveal a clear legal divergence of the intended future of renewable materials. The European Union codified circular-economy principles into binding law that applies uniformly across Member States, integrating strict export controls, producer responsibility, and hazardous waste minimization. The United States, by contrast, continues to regulate under a statute (RCRA) drafted in and designed for a 1970s industrial economy. Despite its recent amendments, RCRA continues to promote a linear, disposal-based waste management that treats hazardous waste primarily as an endpoint rather than a potential resource.[20] Under the current structure, U.S. regulations remain fragmented by states, nationally dependent on export markets to manage its waste, and ultimately will rely more foreign markets for recycled materials.[21]
This divergence draws up legitimate economic concerns. U.S. recyclers and manufacturers are increasingly becoming excluded from Basel-compliant supply chains, while compliant nations, such as the EU and Canada, have moved to internalize their waste markets and develop new industries around recycled content, material recovery, and closed-loop manufacturing.[22] China’s 2020 Solid Waste Law banned most foreign waste imports, reflecting a broader shift toward domestic waste management systems, specifically from nations who used to be wase importers.[23] Other nations, including Malaysia and Thailand, have also started to reject global waste shipments on environmental grounds, turning their waste industries inwards.[24] These global policy shifts show how the United States could be isolated with its outdated, export-dependent model.
By continuing to externalize the environmental costs of its own production and consumption, the United States also risks eroding its credibility in international environmental governance. As the global waste sector transitions toward traceable, closed-loop waste recovery systems, the absence of a cohesive, federal circular framework may weaken its position in the emerging green-technology economy and suppress domestic innovation in the renewable energy sector.[25]
Conclusion
The EV revolution cannot credibly be called sustainable if the batteries that power it become the next generation of hazardous waste harming both people and the planet. As EV adoption accelerates, millions of lithium-ion batteries will reach end-of-life in the U.S. and simply be disposed without a cohesive national framework for collection, recycling, or reuse. By ratifying the Basel Convention and adopting legislation modeled on the EU’s Battery Regulation, Congress could transform the RCRA into a modern piece of legislation that looks towards clean-energy accountability and economic innovation. Such reform would establish a national extended-producer-responsibility program, create digital traceability for EV batteries, and promote domestic recycling industries to recover materials which can be reused for U.S. manufacturing, limiting material imports while also making the US a recycled material exporter. Whether the circular economy method ultimately offers the most efficient or equitable model for waste governance remains to be seen as the EU, China, and other global superpowers are just beginning their shift towards a circular structure. But the fact remains that inaction risks leaving the United States out of a growing industry born from its own waste.
[1]Amjad Ali et al., Sustainable Recycling of End-of-Life Electric Vehicle Batteries: EV Battery Recycling Frameworks in China and the USA, 10 Recycling 68, 76 (2025).
[2] Jay N. Meegoda et al., End-of-Life Management of Electric Vehicle Lithium-Ion Batteries in the United States, 4 Clean Technol. 1162 (2022).
[3] Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, Mar. 22, 1989, 1673 U.N.T.S. 57, Preamble.
[17] Regulation 2023/1542 of the European Parliament and of the Council of 12 July 2023 on Batteries and Waste Batteries, 2023 O.J. (L 191) 5, Annex I.
[25] Fazal Ur Rehman et al., The Nexus Between Circular Economy Innovation, Market Competitiveness, and Triple Bottom Line Efficiencies Among SMEs: Evidence from Emerging Economies, 30 Envt’l. Sci. & Pollution Res. 122274, 122277 (2023).
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Submissions The Vermont Law Review continually seeks articles, commentaries, essays, and book reviews on any subject concerning recent developments in state, federal, Native American, or international law.
