Few objects command more loyalty from American teenagers than the glowing rectangles in their pockets. Cell phones have become lifelines, entertainment consoles, and—at least in theory—educational tools. Yet they are also distractions of the highest order. As one New Hampshire student recently admitted, a statewide ban on school-day phone use forced him to actually “do work” during downtime.[1] That confession might make any teacher smile.
This blog post examines the emerging legal and policy landscape of cell-phone bans in public schools, with particular focus on New Hampshire’s new statewide “bell-to-bell” prohibition. It also considers Vermont’s parallel efforts, nationwide trends, and developments abroad. While bans like New Hampshire’s likely advance learning and social well-being, their legal implications—touching on parental rights, due process, and even the First Amendment—remain unsettled.
I. States Look to Restrict Cell Phones in Schools A. New Hampshire’s Bell-to-Bell Ban
In June, New Hampshire Governor Kelly Ayotte signed a state budget bill including a legislative amendment requiring school boards and charter school trustees to adopt “bell-to-bell” cell-phone bans.[2] Under the new law, students are barred from using cellphones from the first bell to start instructional time until end-of-day dismissal, including during lunch and class transitions.[3] Exceptions exist for medical devices (such as insulin pumps and glucose sensors), accommodations identified in individualized education programs (IEPs), plans developed under Section 504 of the Rehabilitation Act of 1973, and language-access needs under Title VI of the Civil Rights Act of 1964.[4]
Governor Ayotte championed the measure as a way to “restor[e] classrooms as spaces dedicated to learning, collaboration, and student well-being.”[5] A gubernatorial press release framed it as a win for students’ focus, teachers’ sanity, and parents’ peace of mind.[6] Supporters cited research linking excessive screen use with adolescent anxiety, depression, and sleep deprivation, as well as school-level data showing reduced behavioral issues and cyberbullying when phones are banned.[7] In other words, New Hampshire has embraced the radical notion that schools are for education, not Snapchat.
B. Vermont: Following Close Behind
Neighboring Vermont has enacted a similar law to take effect for the 2026–27 school year.[8] But many Vermont schools have already experimented with restrictions. Teachers at Spaulding High School in Barre require students to surrender phones on a classroom counter at the start of class.[9] Harwood Union Middle and High School adopted Yondr magnetic lock pouches, funded in part by leftover federal COVID-19 relief money.[10] Thetford Academy, serving as a public school for several towns, banned phones even before the statewide mandate after a community advocacy campaign garnered strong support for immediate action.[11]
Vermont educators report familiar frustrations: students distracted by social media, parents texting midday, and the awkward phenomenon of a cafeteria full of teenagers staring silently at screens.[12] Teachers describe phone-free days as restoring authentic conversation and student attentiveness.[13] Don Tinney, president of the Vermont chapter of the National Education Association, posed the rhetorical question: “If we can’t get a handle on this in our schools, where will we get control over these digital devices?”[14]
C. Nationwide Developments
New Hampshire and Vermont are hardly alone. More than half of U.S. states have adopted restrictions.[15] Texas, for instance, passed House Bill 1481 in May, 2025, requiring districts to curtail phone use.[16] Teachers there report more eye contact and—quaintly—students rediscovering Uno cards.[17]
New York recently mandated magnetic pouches statewide.[18] Students keep their phones but cannot unlock them until the school day ends, a system praised by administrators but tested by enterprising teens who attempt to dismantle the pouches.[19] Florida led the charge in 2023 by banning phones outright during instructional hours, and other states quickly followed.[20]
The sheer diversity of approaches—total bans, pouch systems, “out of sight, out of mind” policies—underscores the lack of consensus on how to balance discipline, safety, and practicality.
II. Benefits and Concerns
The reasons to restrict phones are well-documented. Phones distract from academic work, facilitate cheating, perpetuate cyberbullying, and exacerbate mental health challenges.[21] Schools report that bans improve engagement and reduce disciplinary incidents.[22] The U.S. Surgeon General has even warned that social media poses “a profound risk of harm” to youth mental health and well-being.[23]
Yet there are counterpoints. Phones provide parents peace of mind during emergencies, assist with after-school logistics, and serve as educational tools when properly integrated.[24] Some parents view confiscation or extended retention of devices as infringing upon their due process rights to direct their children’s upbringing.[25] Enforcement also strains school resources and may foster resentment.
Even students themselves are ambivalent. As one Vermont high schooler acknowledged, “every student … does know they’re addicted to their phone,” but that does not make giving it up easy.[26]
III. Legal Framework and Challenges A. Parental Rights and Due Process
A prominent concern is whether school bans impermissibly interfere with parents’ constitutional rights. Plaintiff families have argued that confiscation and retention policies beyond school hours may violate the Fourteenth Amendment due process rights of parents to direct the upbringing of their children.[27] Courts have historically recognized this right, though its scope in the educational context remains contested.[28]
B. Free Speech and the First Amendment
Two classic precedents—Tinker[29] and Hazelwood[30]—establish that students retain constitutional rights but that schools may regulate expression when necessary to preserve order or educational purpose. Some scholars suggest that outright phone bans could implicate students’ right to receive information in the digital era.[31] Mary Beth Tinker herself has expressed skepticism about unfettered phone use, noting the documented harms to youth health.[32]
Still, a phone is not inherently “speech,” and bans typically regulate the device rather than content. Courts would likely uphold restrictions narrowly tailored to educational goals, particularly with exceptions for medical and disability accommodations.[33]
C. Privacy and Enforcement
Confiscation policies raise privacy concerns. For example, what happens if a teacher inadvertently views private messages or data on a seized device? Scholars caution that schools must tread carefully to avoid Fourth Amendment violations.[34]
D. Comparative Perspective: The United Kingdom
The debate is not uniquely American. In July, two British fathers launched a legal challenge against the British Department for Education, arguing that failure to mandate schoolwide bans violated children’s human rights.[35] They seek a judicial review to compel a nationwide prohibition, citing concerns about exposure to pornography and violent content.[36] Meanwhile, political leaders remain divided; current Prime Minister Keir Starmer has dismissed mandatory bans as unnecessary, noting that most schools already restrict phones.[37]
The British litigation highlights a novel twist: framing smartphone access as a human rights issue, not merely a matter of discipline. Whether such arguments will persuade British courts remains to be seen, but the case underscores the global resonance of the debate.
IV. Policy Considerations
From a policy standpoint, bell-to-bell bans simplify enforcement, promote equity, and minimize distraction. But implementation costs—pouches, staff training, security infrastructure—can be substantial.[38] Moreover, blanket bans may ignore legitimate educational uses of smartphones for language learning, research, or accessibility. A nuanced approach may be preferable, though nuance is often harder to enforce than a flat rule.
Ultimately, the law grants schools broad latitude to regulate student conduct, provided policies are reasonable, nondiscriminatory, and respectful of constitutional limits. Still, as potential litigation looms, states would be wise to draft bans with explicit exceptions, parental consultation, and annual review processes—as New Hampshire’s law already requires.[39] Of course, including student voices where feasible should certainly be encouraged as well.[40]
Conclusion
Some teenagers may view phone bans as cruel and unusual punishment, but the evidence suggests otherwise. From New Hampshire to Texas, schools report increased focus, better mental health, and even more human conversation when phones are set aside. That said, unresolved legal questions remain. How far schools can go without infringing parental rights? Do such bans implicate free speech rights? How enforcement avoids privacy violations?
New Hampshire’s bell-to-bell model seems to offer a promising blueprint. It balances firm restrictions with necessary exceptions, signals a cultural shift toward reclaiming schools as learning spaces, and recognizes the gravity of the distraction problem. Whether courts ultimately bless such laws will determine if “phone-free schools” become a permanent fixture or a passing experiment. For now, though, the message is simple: put the phone away—your civics assignment awaits.
[3] N.H. Dep’t of Educ., Technical Advisory: Guidance to Public and Chartered Public Schools for Implementing HB2’s “Bell to Bell” Prohibitions on Student Cell Phones and Personal Electronic Communication Devices (2025).
[28]See, e.g., Koch v. Adams, 361 S.W.3d 817, 821 (Ark. 2010) (rejecting a student’s challenge to a school policy that allowed cell-phone confiscation during class, finding the policy constitutional and within the school’s authority to enforce discipline under such rules); Price v. N.Y.C. Bd. of Educ., 855 N.Y.S.2d 530, 537 (N.Y. 2008) (upholding city’s ban on students bringing cell phones to school, reasoning that it was reasonably related to educational objectives and did not unduly restrict communication outside school hours).
[29] Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969).
[30] Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988).
Imagine you’re looking for a housemate. You put an ad out online and find someone who seems trustworthy. You don’t have the capability to do a formal background check; yet, everything about them seems legitimate. Then, a month later, unannounced, probation officers search your home. They find recreational drugs in the common area and arrest your housemate, calling the police to help them secure the drugs. The police come and search the rest of the house, including your bedroom, where they find more recreational drugs. They arrest you and bring possession charges against you. Was that search legal? Should it be?
The Fourth Amendment to the United States Constitution guarantees our protection against “unreasonable search and seizures.”[1] It further protects us from searches performed without warrants, or under warrants which fail to describe the place or person to be searched.[2] However, probation agreements typically require the probationer to waive these fourth amendment rights.[3] Allowing probation officers to search the probationer’s property for any violations of their agreement—drugs, weapons, contraband—makes sense. Probation is a much more economical alternative to incarceration and is typically seen as both more effective and better for the probationer.[4]
To ensure these programs succeed, the government needs a method to sustain them. Consented-to warrantless searches of probationers’ properties are one such method.[5] Probationers can live with non-probationers. These non-probationers are not party to the probation agreement and therefore haven’t expressly consented to waiving their Fourth Amendment rights. At the federal level, probationers “must warn any other occupants that the premises may be subject to searches pursuant” to their probation agreement.[6]
Both federal and state courts have generally held that anyone knowingly living with a probationer has a diminished right to privacy.[7] Specifically, that the probationer’s consent via their probation agreement renders valid any warrantless search of areas of “shared authority.”[8] This is intuitive. If you know the person you live with is a probationer subject to unannounced, warrantless searches, it follows that you have consented to those searches.[9] By volunteering to live with the probationer, you have volunteered to the conditions of their probation that affect your shared spaces.
But what if you didn’t volunteer to live with a probationer? In our hypothetical, we discussed a situation in which the non-probationer was unaware that their housemate was on probation. The rules from Matlock tell the probationer to warn other occupants of the potential for searches.[10] However, no probation officer would know of any failure to disclose or be able to enforce disclosure until they showed up to the house. Probationers have incentive to not disclose their status to potential roommates to obtain housing. As a result, the burden would be on the potential housemate to ensure they had checked probation records before allowing a new roommate into their home. This seems unfair and unreasonable to expect a layperson to understand this as a risk.
If the probationer did not disclose their status, a housemate would have no way of knowing a search was coming. The Supreme Court’s theory that by knowingly deciding to live with a probationer you’ve consented to the conditions of their probation would “evaporate.”[11] If you don’t know that your housemate is a probationer, you can’t consent to the elements of their agreement which necessarily effect you. Without that consent, any search would not only be without a warrant but would be executed against a person who had not waived their Fourth Amendment rights. Such a search would be unconstitutional.[12] Likewise, any evidence gathered because of a search would be inadmissible.[13] This is a significant gap in the law, which creates the substantial possibility that the Fourth Amendment’s protection of the people of the United States can be flouted quite easily. This gap seems to be unaddressed by the Supreme Court or Federal legislation. It is certainly not fixed by the Federal Probation-Conditions Statute.[14] A search of state statutes likewise turns up little.
The reason for this lack is cited by the Minnesota court in State v. Bursch: courts are unwilling to make rulings on something that could “effectively thwart all probation searches.”[15] One can follow their logic. Exempting any evidence found in a probation search where it could potentially belong to an unknowing household member would create a significant loophole. A strategic probationer would choose to live with housemates to avoid unannounced searches.[16] If this were the case, probation officers would likely cease searching any probationer’s premises if another person lived on it. After all, if any evidence they gathered could be dodged by a claim that it belongs to the unknowing non-probationer why spend the time and money on a search?
So, we find ourselves with a dilemma. Either an unknowing household member is subject to warrantless search or seizure because of their Probationer roommate; or the probationer’s agreement can’t be appropriately enforced. A few cases address this. They have held that evidence found in a search and used against a non-probationer is void if the search was conducted over the “express refusal of consent by a physically present resident.”[17] However, this does not address an issue where a search is conducted when only the Probationer is home, or when no one is home.
This gap must be filled. A statute to address the ambiguity that searches in these circumstances produce. The language of that statute should show proper deference to the Fourth Amendment. Its exact language will not be speculated on here, but it should ensure that probation and parole officers cannot execute a search without a warrant where a non-probationer household member might be unaware of their housemate’s status. Further, this burden of ensuring knowledge should be placed on either the probationer or the probation officer, not the unwitting housemate. That could be as simple as the probationer providing other occupants’ names and contact information, and probation officers ensuring notification of those occupants before commencing the normal unannounced search schedule. Alternatively, it could consist of the housemates signing affidavits or waivers that the probationer delivers to probation upon their initial notification of address. No matter the method, this ambiguity needs a solution which alleviates the burden to an unwitting housemate. A statutory solution would be the clearest and most efficient, and both federal and state legislatures should work to ensure this gap in our law is rectified.
[7]See United States v. Matlock, 415 U.S. 164, 94 S. Ct. 988 (1974) (confirming a non-probationer knowingly living with a probationer have diminished freedoms from warrantless searches); see also United States v. Harden, 104 F.4th 830, 834 (11th Cir. 2024); State v. Bursch, 905 N.W.2d 884 (Minn. Ct. App. 2017); State v. Green, 349 So. 3d 503 (Fla. Dist. Ct. App. 2022).
The American criminal justice system is built on the promise of a fair trial. That promise falters when prosecutors pursue cases against defendants with significant mental impairments or fail to carry their burden. Current competency standards, shaped by Dusky v. United States,[1] focus narrowly on a defendant’s ability to communicate with counsel. Ambiguities in the law, lenient procedures, and inconsistent psychiatric evaluations create a system where incompetent defendants may still face trial, while others may be released without ever receiving the treatment needed. Strengthening these standards is essential to protect due process and ensure that justice is not just procedural, but actual.
One of the fundamental principles of the American criminal justice system hinges on the idea that prosecuting an individual who is mentally incompetent violates due process.[2] This right ensures a fair trial, as according to the Supreme Court in Medina v. California competence is considered “the foundational right for the effective exercise of a defendant’s other rights.”[3] These rights include, but are not limited to, the right to counsel, to confront witnesses, and to testify or remain silent.[4] The current standard for competency to stand trial is articulated in Dusky v. United States.[5]Dusky requires an accused to have “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding. . . and [must have] a rational as well as factual understanding of the proceedings against him.”[6] The existing legal framework and its practical application reveal several areas where stricter competency standards are necessary to vigorously uphold this fundamental due process right while also balancing the need to protect the welfare of the people.
The flexibility and the ambiguity in applying the Dusky test is a significant aspect that suggests this need for stricter standards. Namely, the mere presence of “some degree of mental illness” or “limited intellectual ability” does not automatically render the accused incompetent.[7] These are “merely relevant factors” to be considered in the midst of proceedings.[8] Furthermore, the use or addiction to illegal substances does not result in incompetence, though “the influence of drugs or the effects of drug withdrawal” could be debilitating enough.[9] This broad consensus can inherently lead to a slippery slope of impaired individuals being deemed competent or competent individuals being deemed incompetent. The spectrum is wide. A stricter standard would require that such significant mental health conditions or severe substance use disorders create a stronger presumption of incompetence that would require the state to meet a higher burden to prove otherwise.
The distinction between a defendant’s capacity to assist counsel and their actual willingness to do so also presents a unique point of concern. The standard focuses on the accused’s “capacity to assist in preparing his or her defense,” not “whether he or she actually cooperates.”[10] This means a defendant who essentially can coherently confer but refuses to engage with their attorney could still be found competent. Even if this behavior is due to paranoid delusions or severe apathy.[11] For instance, even where an accused who spent court sessions scribbling bizarre pictures and muttering conspiracy theories, experts can agree he is still deemed competent to stand trial, despite his inability to sustain a rational conversation. This highlights how a purely “capacity” focused standard overlooks the ultimate inability of an accused to mount an effective defense. This can justify a shift towards requiring active engagement or a more definitive assessment of the underlying reasons for the non-cooperation.
Additionally, the Supreme Court’s decision in Medina v. California introduced a type of procedural leniency that directly undermines the protective intent of the competency doctrine.[12]Medina allows states to establish a presumption of competence and requires the defendant to bear the burden of proving incompetence by a preponderance of the evidence.[13] This decision was heavily criticized by Justice Blackmun and Justice Stevens in the dissent, who argue that “a Constitution that forbids the trial and conviction of an incompetent person tolerates the trial and conviction of a person about whom the evidence of competency is so equivocal and unclear.”[14] Justice Blackmun also emphasizes that “the right to be tried while competent is the foundational right for the effective exercise of a defendant’s other rights.”[15] Requiring a potentially incompetent defendant to prove their own mental incapacity introduces an “unacceptably high risk that persons will be tried and convicted who are unable to follow or participate in the proceedings determining their fate.”[16] This dissent essentially highlights that the State is in a superior position to gather evidence of competency over a defendant. The State has direct, unfettered access to a defendant in custody and possesses the resources for the necessary psychiatric evaluations and commitment if needed.[17] Stricter standards would necessitate placing the burden of proving competence on the prosecution in order to adequately protect the underlying due process right.[18] This would further align with other instances where the government bears the burdens for issues that implicate certain constitutional rights.
The nature of psychiatric testimony and its application in competency evaluations also point to weaknesses in the current standards. Psychiatry is acknowledged as an “inexact science,” where “subtleties and nuances of psychiatric diagnosis render certainties virtually beyond reach in most situations.”[19] Clinicians often confuse legal incompetency with psychosis, or may overdiagnose incompetence for humanitarian reasons, or even underdiagnose due to a lack of legal sophistication.[20] This lack of accuracy and potential for misinterpretation means that the “legal question of competency” may not be sufficiently addressed.[21] Stricter standards would require psychiatric evaluations to focus explicitly on the Dusky[22] criteria and the defendant’s functional abilities in the legal context, not just clinical diagnoses. This could create a likelihood of enhancing the overall reliability of the findings. Moreover, Drope v. Missouri cautions that a defendant’s demeanor during trial “cannot be relied upon to dispense with a hearing on that very issue” of competence, specifically when there is “uncontradicted testimony of . . .[a] history of pronounced irrational behavior.”[23] This warning suggests that surface-level impressions of alertness should not outweigh substantial evidence of impairment. Stricter standards would elevate the weight given to complex medical histories and consistent patterns of specific behavior, rather than courtroom demeanor. Additionally, a court may impose a higher standard of competence for a defendant seeking to represent themselves than for merely standing trial. This directly acknowledges that the Dusky standard[24] for simply standing trial might not be sufficient for full engagement in the judicial process.[25] This disparity suggests that the baseline standard for competency to stand trial may itself be too low.
Stricter competency standards would benefit society as a whole by reinforcing the principle of a fair and just criminal justice system. By rigorously ensuring that only individuals with a “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding . . . and a rational as well as factual understanding of the proceedings against him” stand trial, the government upholds its burden of due process.[26] It would also help protect the overall integrity and public confidence in judicial proceedings and state officials. Nevertheless, this approach could also lead to more accurate adjudications. More accurate adjudications could then help reduce the fiscal and administrative burdens associated with repeated, lengthy, and unnecessary competency evaluations and hospitalizations.[27] This approach would allow a more efficient allocation of both mental health and legal resources.
In summary, the Constitution demands more than a mere inquiry into competency; it requires a safeguard against putting someone on trial who inherently cannot defend themselves. The Dusky standard[28], as applied today, is riddled with ambiguities that tilt the scales against the accused and allow the State to avoid its duty and not bear their burden. Stricter, clearer standards would close those gaps, force the government to prove competence, and ensure trials reflect true fairness.
When a violent act occurs, the harm rarely stops with the primary victim. Family members, loved ones, and even bystanders can be deeply affected, becoming what legal systems call secondary victims.[1] Secondary victims endure trauma—not through direct assault or other means of harm—but through proximity, kinship, or institutional responses that compound suffering.[2] Yet, despite the severity of their harm, secondary victims often remain marginalized in law and policy.
In criminal law, the victim is directly the target of a crime. Specifically, “crime victim or victim of crime means a person who has suffered physical, sexual, financial, or emotional harm as a result of the commission of a crime.”[3] In United States tort law, a victim is someone who is harmed by an act or omission on the part of the tortfeasor.[4] The secondary victim, however, is the individual indirectly harmed[5]—parents grieving a murdered child, siblings traumatized by abuse within the family, or partners burdened with caring responsibilities. Secondary victims exist in both criminal and tort legal systems because of the violent nature that both systems protect against.
With the definitions of victims and secondary victims in mind, distinguishing between secondary victimization and secondary victims is important, as the terms refer to very different realities, but are often confused. First, under 28 C.F.R. § 103.3, secondary victimization means re-traumatizing a primary victim through institutional or societal responses after the crime.[6] This might occur when police blame a survivor, doctors subject a survivor to invasive or insensitive medical procedures, or in court questioning retraumatizes a survivor .[7] In this sense, the harm is “secondary” because it represents a second layer of injury inflicted upon the same person. Second, by contrast, secondary victims are different individuals who themselves suffer harm because of their connection to the primary victim.[8] Unlike secondary victimization, which deepens the suffering of the direct victim, the harm to secondary victims is independent and distinct, and in some jurisdictions is recognized as actionable.
Different international jurisdictions apply factors test for secondary victims’ harms and recognize cost and losses for secondary victims. For example, Israeli tort law uses a factored test to assess the amount of harm suffered to determine if it is actionable. There, secondary victims are recognized as individuals who suffer compensable harm if: (1) they are family members who witnessed the event or its consequences, (2) there is temporal and spatial proximity between the primary and secondary harms, and (3) the harm suffered by the secondary victim is severe enough to disrupt daily functioning.[9] Further, French personal injury law recognizes not only pecuniary costs, but also non-pecuniary losses.[10] Such as, emotional harm that manifests as a medical condition—like depression—when calculating restitution for victims and secondary victims.[11]
United States case law demonstrates the uneven treatment of secondary victims. In United States v. Terry, the Fourth Circuit Court of Appeals allowed sentencing enhancements where indirect secondary victims suffered extraordinary psychological harm provided there was a nexus to the offense.[12] In that case, the Court defined victim in the statutes at issue to include the direct victim of the offense of conviction and indirect secondary victims.[13] The Court specifically mentions that an indirect secondary victim is a person with a direct relation to the offense, not a person with a relationship to the direct victim.[14] In United States v. Haggard, the Ninth Circuit Court of Appeals included family members of a murdered federal officer in victim status, deeming them incidental victims rather than direct victims.[15] In that case, the Circuit Court held that although the deceased federal agent was a direct victim of the crime, the family of the direct victim were also victimized by Haggard’s criminal acts.[16] Therefore, the Court found it appropriate to consider the psychological injury that the family members suffered when considering criminal sentencing.[17]
Beyond sentencing, restitution also exposes the lack of recognition for secondary victims. Under the Mandatory Victim’s Restitution Act (MVRA), U.S. courts generally confine restitution to direct victims.[18] In United States v.Riviera-Solis, the District Court denied restitution for psychological service costs to the relatives of the murdered victim because they had not suffered bodily injury.[19] The Court conceded that the two secondary victims were indeed victims in their own right.[20] However, the Court was unable to order restitution due to the MVRA’s definitions and prior precedent. The MVRA’s narrow definition limits a courts ability to grant restitution to secondary victims. Specifically, a victim under the MVRA is “a person directly and proximately harmed as a result of the commission of an offense.”[21] By excluding secondary victims from the definition, the MVRA restricts secondary victims from receiving recognition that could have helped them to recover and heal from harm that they indirectly experienced. Not recognizing this unique category of victims creates the risk of reinforcing a hierarchy of suffering that undervalues the psychological burdens experienced by secondary victims.
Recognition can help. Secondary victim’s experiences are not limited to emotional grief; these experiences extend into disrupted livelihoods, health deterioration, and strained relationships. Recognizing this extension of harm is not an act of generosity; it is a matter of justice.
[1]Tort Law: What Qualifies You as a Secondary Victim, LegalClarity (Aug. 31. 2025), https://legalclarity.org/what-qualifies-you-as-a-secondary-victim/ (defining a secondary victim as one “who suffers injury, typically psychiatric, from witnessing or apprehending harm to another person, known as the primary victim. Unlike primary victims, who are directly involved and physically harmed, secondary victims are indirectly affected by observing the event’s impact”).
[19]See United States v. Riviera-Solis, 733 F.Supp.3d 46, 55 (D. Puerto Rico 2024).
[20]Id.; United States v. Patton, 651 Fed. Appx 423, 427 (6th Cir. 2016) (stating “[b]ecause the victim’s spouses suffered no bodily injury, the district court erred in awarding them lost wages under the MVRA”); United States v. Harwood, 854 F. Supp. 2d 1035, 1063 (Dist. N.M. 2012) (holding that the “plain language [of the MVRA […] confines the scope of restitution for psychological services to when the victim has suffered a ‘bodily injury’”).
“Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist in the United States, or any place subject to their jurisdiction.”[1] Marked by the end of the Civil War, on January 31, 1865, Congress passed the Thirteenth Amendment to the Constitution.[2] The Thirteenth Amendment proclaims the abolition of slavery. However, embedded within the language, a loophole exists. Enshrined in the exception clause, a modern form of slavery continues to exist.[3] Slavery is defined as “the practice of keeping individuals in such a state of bondage or servitude.”[4]
Since this amendment, prisoners have been subjected to involuntary servitude. A prisoner can be forced to work or withstand punishment like solitary confinement or even physical beatings.[5] At least six Circuit Courts have held “the presence of forced labor is viewed as a reality of imprisonment and not an unconstitutional punishment.”[6] However, many unknowns still exist with respect to the Thirteenth Amendment’s applicability. For example, is the Amendment meant to encompass forced unpaid labor, or can it also encompass a prisoner who is paid an egregiously low wage?[7] In 2017, the average prison wage in all 50 states ranged from 33 cents per hour to $1.41, whereas the federal minimum wage is $7.25 per hour.[8] Despite the Fifth Circuit diverging from the majority of circuits, the Court held in Watson that a “prisoner who is not sentenced to hard labor retains his Thirteenth Amendment rights.”[9] Ultimately the petitioner in Watson lost because they were paid for their labor. [10]
In addition to low wages, inmates also suffer from very few job protections. Incarcerated workers aren’t covered by basic protections such as worker’s compensation or federal safety standards.[11] The lack of safety standards have resulted in death. For example, Frank Dwayne Ellington was sentenced to life in prison for stealing a wallet at gunpoint—a result of Alabama’s Habitual Offenders Act. In 2017, Ellington, “was cleaning a machine near the chicken ‘kill line’…at Koch Foods…when the whirling teeth caught his arm and sucked him inside, crushing his skull.”[12] Frank Ellington died instantly. Koch Foods argued that Ellington wasn’t an employee.[13] The case eventually settled, but Koch Foods was fined because workers had not been given proper training.[14] Despite all this, prison labor continues to seep into the supply chain both in the United States and internationally.[15]
Affecting change will require taking a unique path. Repealing the exception clause in the Thirteenth Amendment can take years and remains pending on the federal level since 2023.[16] More recently several states have amended their constitutions curtailing the use of prison labor.[17] In 2022, Alabama, Oregon, Tennessee, and Vermont all approved ballot measures that could restrain the use of prison labor.[18] Vermonters overwhelmingly approved a state constitutional change (“Proposal 2”) banning slavery and indentured servitude in November 2022.[19] At least a dozen more states have language in their constitution that still permits slavery and involuntary servitude for prisoners, while several other states still have no language permitting or denying forced prison labor.[20] Lawmakers have raised questions about if these amendments will address inmates being paid below minimum wage for their work or only address forced labor. The Vermont Department of Corrections will continue to employ incarcerated workers for pay because Proposal 2 only concerns forced labor. [21]
While abolition of slavery in state constitutions is a necessary first step for eradicating forced labor, additional legislation on the state and federal levels that address specific issues surrounding inmate wages, employee protections, and safety training is imperative. Additional legislative measures may also arise as we address issues such as exploitation of workers in large companies, policies surrounding employment for inmate’s post release, drug policies, and public health policies.
[1] U.S. Const. amend. XIII, § 1 (emphasis added).
Intellectual Property (IP) law walks the line between protecting the originality of creative works and maintaining a free marketplace of ideas.[1] Recipes, however, have long presented a challenge to that balance because they do not fit neatly into the traditional avenues of intellectual property protection. While social media platforms have exacerbated the flaws of IP law in the food context, they may also present an alternative means of justice for food creators to protect their intellectual property.
Four traditional avenues exist for intellectual property protection: (1) trademarks, (2) trade secrets, (3) copyrights, and (4) patents.[2] Each presents unique challenges for recipe developers. This leaves food content creators with no perfect legal recipe for recipe protection.[3]
First, industry professionals favor trademarks as their primary form of IP protection in the food industry, but social media complicates that favoritism.[4] Trademarks protect words, names, symbols, or devices used to identify and distinguish goods or services and indicate their source.[5] Trademarks can include names or symbols associated with a recipe or food product, provided they are used in commerce to identify the source of the goods.[6] For example, a restaurant name or a branded food product associated with a recipe may qualify for trademark protection. While companies trademark many food items, think Tootsie Rolls or Oreos, it is difficult for food creators to meet the requirements.[7] If a creator is only using a recipe as social media content, that recipe is not used in commerce and cannot be trademarked.[8]
Next, trade secrets provide clear protection for recipes while also having a clear downside in the context of social media creators. As the name implies, trade secret protection applies to information that derives economic value from not being generally known.[9] This presents an obvious problem for recipe creators, whose online platform consists of them sharing their recipes. Therefore, trade secrets are not a good option for food content creators.
Continuing to copyrights, despite being an easy solution for cookbook authors, content creators have difficulty getting copyright protection. Copyrights protect original works from unauthorized reproduction and distribution.[10] In the recipe context, copyrights protect the expressive text of a recipe which can include the list and sequence of ingredients, the precise language and grammar of step-by-step instructions, prose descriptions, personal anecdotes, and creative styling.[11] However, copyrights do not cover recipes that are mere lists of ingredients with basic instructions.[12] Therefore, recipes alone are rarely given copyright protection unless they contain a sufficient degree of originality and creative expression.[13] The distinction between barebones recipes and those with additional creative or literary content is especially fuzzy in the context of social media.
Finally, patent protection for recipes is similarly elusive. The U.S. Patent and Trademark Office grants patents for new and useful processes, machines, manufactures, or compositions of matter.[14] This can be useful for recipe developers, since they seek to protect the processes of cooking that a recipe contains. However, to obtain a patent, a recipe must be novel, non-obvious, and useful.[15] These can be difficult hurdles to overcome, unless the recipe demonstrates a cooperative relationship between ingredients that produces an unexpected result. Online recipe content creators rely more on volume of posting than intricacy of recipe to create content.
So, what recourse do content creators have when others steal their recipes and intellectual property law offers no remedy? Social media provides a solution: put justice into the hands of the people. Social media’s public nature gives creators an avenue to publicly air their grievances while using time stamps to prove the originality of their creations. This could lead to alternative dispute resolutions between the original creator and their imitators, or it could mean a trial by public opinion. Whatever the result, it is a meaningful mechanism for justice outside of established intellectual property law.
The legal system’s failure to protect food content creators’ intellectual property is not a recipe for disaster. Social media provides a unique opportunity for food content creators to take justice into their own hands.
[1] Kurt M. Saunders & Valerie Flugge, Food for Thought: Intellectual Property protection for recipes and food designs, 19 Duke Law and Tech. Rev. 159, 159. (2021).
The CDC defines intimate partner violence as abuse or aggression that occurs in a romantic relationship. The definition applies to both current and former spouses and dating partners.[1] Intimate partner violence can include physical violence, sexual violence, stalking, and psychological aggression.[2] In the United States alone, domestic violence is responsible for roughly 1,500 homicides annually.[3] Intimate partner violence is often synonymous with domestic violence, although domestic abuse can extend to children or other relatives. However, both New York and Vermont compile both intimate partner violence and domestic violence in annual reports for homicide statistics. New York reports have remained consistent in firearms not being the leading cause of death. By adopting similar laws, Vermont could benefit from New York’s approach and prevent future deaths.
Vermont and New York report differing statistics for gun violence. In 2022, Vermont reported that firearms caused death for 81% of the homicides in domestic violence.[4] Notably, domestic violence homicide has decreased from 71% of the total homicides per year in 1994 to 23% in 2022.[5] Although the rates varied from 1994 to 2022, the overall trend is . In one respect, the homicide rate is declining, but a constant remains true: firearms have been the leading cause of death since 1994 and are still the leading cause nearly thirty years later.[6] By contrast, in New York in 2022, domestic violence accounted for 16% of all homicides for that year.[7] The leading cause of death in domestic violence homicides was a knife, cutting instrument, or blunt objects at 45% of the total homicides.[8] Firearm deaths accounted for 23% of total homicides.[9] Similar to Vermont, New York has also seen a decline in domestic homicides.[10]
Domestic violence incidents involving firearms present a significantly higher risk of fatality. Domestic violence assaults involving a firearm are 12 times more likely to result in death than those involving other weapons or bodily force.[11] Additionally, firearms are used to commit more than three in five of all intimate partner homicides in the United States.[12] Domestic violence homicides involving firearms contribute to more than half of all mass shootings.[13] Approximately one-third of mass shooters have a history of domestic violence, indicating a direct consequence of mass shootings.[14] These statistics emphasize the need for comprehensive measures to control firearm access to prevent intimate partner deaths and broader violence.
New York and Vermont also have differing population sizes. New York’s population is significantly larger than Vermont’s. New York’s population is 19.9 million; while, Vermont’s population is 648,000. Along with a larger population, New York has the highest demand for domestic violence-related services in the country.[15] So, how can one of the most populous states in the country not have firearms as the top cause of death in domestic violence homicides? The answer might be hidden within gun control laws.
Federal law prevents firearm ownership for individuals convicted of domestic abuse and requires the surrender of any firearms an individual possesses.[16] Although federal protection exists, a gap remains due to the lack of legal protection for victims seeking protection orders., It is often left to individual states to fill this gap in legislation. The issue often is whether a state has laws requiring individuals to relinquish firearms when a protection order is issued. This is not just supplementary protection. Laws affecting the safety and well-being of domestic violence victims have a significant impact. The severity of the impact could result in further harm or even death.
Victims of domestic violence trauma should not be required to make extra efforts to secure their physical safety. Vermont and New York both have background check requirements for the purchase of firearms and prohibit domestic abusers under restraining orders from purchasing firearms.[17] However, Vermont’s legal protections for victims fall short in preventing future gun violence.[18] Vermont does not require individuals to surrender their firearms immediately when a restraining order is issued against them.[19] Vermont does allow family or other household members to make such orders necessary to protect the plaintiff or the children in the case.[20] However, this places an extra undue burden on a victim, likely suffering from trauma already. In New York, when temporary orders of protection are placed against domestic abusers, the court orders the surrender of their firearms to prevent harm to victims.[21] Additionally, New York imposes additional charges against an individual who fails to surrender their firearms. An individual is subject to a class A misdemeanor.[22]
The discourse between gun ownership and preventing domestic violence homicides is a complex and nuanced topic. New York is currently ranked as one of the strongest gun control states in the country.[23] Additionally, New York dodges firearms as the leading cause of death in domestic violence homicides. The correlation between a strong legal framework to protect potential victims and reduce their burden is something Vermont could adopt through analogous legislation. Vermont could prevent future domestic violence deaths by adopting similar gun restrictions like New York. Additionally, Vermont could address the ongoing issue of gun violence that consistently impacts its annual homicide rates.
[15] Joan Gerhardt, NY State Coal. Against Domestic Violence, Testimony of The New York State Coalition Against Domestic Violence to the Joint Budget Hearing Regarding Public Protection, Before the Joint Budget Hearing of the Senate Finance Committee and the Assembly Ways and Means Committee (2025).
As the use of generative artificial intelligence (AI) expands, society will experience both significant benefits and serious repercussions, underscoring the need for legal mandates that strike a balanced middle ground. In 2023, an attorney submitted a brief filled with fabricated case law generated by ChatGPT.[1] Judge Brantley Starr of the Northern District of Texas issued an order requiring attorneys to certify that either no portion of their filing relied on generative AI or that any AI-drafted language had been independently verified with traditional legal research tools.[2] Scholars observe that such orders reflect the growing unease with unchecked AI in legal practice.[3] This reaction marked the beginning of a broader trend: courts are moving toward mandatory disclosure of AI use to preserve the legitimacy of filings.[4] That approach should not remain confined to scattered local rules. The legal profession now needs a uniform standard. Only a consistent, nationwide disclosure regime will ensure accuracy, accountability, and transparency as AI reshapes the practice of law.
The Model Rules of Professional Conduct impose a longstanding duty on lawyers to disclose adverse authority, correct material misstatements, and avoid misleading courts through omission.[5] Mandatory AI disclosure is not a departure from these duties but their logical extension. Just as courts historically demanded clarity about sources of law, they now have reason to demand clarity about whether non-human systems contributed to the drafting of legal work. James Coben’s research on mediation confidentiality shows how disclosure frameworks balances transparency with competing values, and AI regulation will require similar calibration.[6]
Today, the framework governing AI remains fragmented among courts and legislatures. The Northern District of Texas requires a statement on the first page of any AI-assisted filing.[7] Missouri’s 20th Judicial Circuit demands disclosure of the specific AI tool used.[8] Washington’s Clallam County District Court insists attorneys certify the role of AI in filings.[9] Legislatures are now following suit. California requires providers to tell patients when AI generates clinical communications.[10] Starting February of 2026, Colorado will mandate disclosure whenever consumers interact with AI, unless the fact is obvious to a reasonable person.[11] Utah imposes disclosure requirements on both law enforcement and regulated services.[12] These rules providing disclosure is no longer experimental, but they also reveal inconsistency. A lawyer practicing across states faces a compliance maze, undermining predictability and frustrating the very goals of regulation.
Judges justify disclosure rules on three grounds. First, accuracy: human review of submissions remains essential to keep AI-generated hallucinations from reaching the courts.[13] Second, accountability: disclosure clarifies that responsibility rests with the attorney, not the software.[14] Third, transparency: clients and courts deserve to know when AI has shaped filings.[15]
These rationales mirror ethical frameworks beyond law. The Belmont Report identifies respect, beneficence, and justice as guiding principles for the protection of human subjects in research.[16] Respect demands transparency, beneficence ensures technology serves human well-being, and justice requires risks and benefits to be fairly distributed.[17] Likewise, scholars argue that disclosure promotes accountability and institutional legitimacy by revealing the reasoning and sources underlying decisions made with AI.[18]
The argument for a uniform standard also gains strength by analogy. Campaign finance law requires disclosures on political advertising to reveal its source.[19] Consumer protection statutes require labels on food, drugs, and financial products to prevent deception.[20] In each case, transparency sustains public trust. The same principle applies here: without disclosure, confidence in legal institutions erodes.
Still, disclosure has detractors. Poorly tailored rules can sweep too broadly. For example, treating Grammarly the same as ChatGPT risks stigmatizing low-risk tools and trivializing disclosure, making compliance more performative than meaningful. Scholars such as Kaminski & Malgieri warn that regimes narrowly focused on ex post ‘explanations’ risk devolving into checkbox compliance rather than meaningful accountability; as they note, the “current focus on the right to explanation is far too narrow.”[21]
Inconsistency adds further strain. Courts and legislatures impose divergent standards, creating uncertainty for attorneys and developers alike. California’s AI Training Data Transparency Act, for example, requires publication of training data summaries, a measure critics say jeopardizes proprietary information without enhancing consumer understanding.[22] Without nuance, disclosure rules chill innovation: lawyers and companies may avoid AI altogether to dodge compliance risks.
Despite these challenges, the solution is not retreat but reform. Disclosure must become mandatory nationwide. Congress should adopt a uniform standard for legal filings and regulated services.[23] A national framework would displace the patchwork of state rules, eliminate compliance traps, and ensure consistent enforcement.[24] Dispute resolution principles emphasize uniform procedures that reduce inequities among litigants; AI disclosure demands the same harmonization.[25]
That uniform standard must also be calibrated. Editing tools such as spell-check should not trigger disclosure.[26] Instead, disclosure should focus on high-risk uses: generating legal arguments, creating factual claims, or producing communications a reasonable person could mistake for human authored. This targeted approach avoids burdening attorneys and businesses with trivial certifications while still capturing uses that implicate accuracy, accountability, and trust.
Mandatory disclosure, if enacted as a uniform standard, will not stifle responsible AI adoption.[27] Lawyers will remain free to use AI tools, but disclosure will ensure they remain accountable for results.[28] Developers will continue to innovate, but disclosure will reassure regulators and the public that AI is not unchecked.[29] Consumers will benefit from honesty that enables informed choices.[30] Properly designed, a uniform standard strengthens both innovation and integrity.
The need for uniformity grows stronger as AI use accelerates. Courts, legislatures, and agencies already recognize the dangers of undisclosed AI.[31] Without disclosure, litigants risk fabricated citations, courts risk distorted evidence, and consumers risk deception.[32] With disclosure, all parties gain transparency and responsibility. The choice is not innovation versus integrity but fragmentation versus coherence. Only a uniform standard offers both innovation and integrity.
Disclosure must function as a uniform standard: clear, consistent, and nuanced. A federal rule balancing transparency with practicality can achieve that goal. Anything less leaves the profession vulnerable to inconsistency and eroded public trust. Mandatory AI disclosures should not be optional or situational, they must be universal. Only then will disclosure fulfill its promise: not as bureaucratic formality, but as a uniform standard worthy of the institutions it seeks to protect.
[1]See Mata v. Avianca, Inc., 678 F. Supp. 3d 443, 448 (S.D.N.Y. 2023).
[20]See 21 U.S.C. § 343 (explaining instances where food may be deemed ‘misbranded.’).
[21] Margot E. Kaminski & Gianclaudio Malgieri, Algorithmic Impact Assessments Under the GDPR: Producing Multi-Layered Explanations, 11 Int’l Data Priv. L. 125, 134 (2021) (noting that the existing “right to explanation” framework is too narrow and calling for more expansive, multi-layered disclosure regimes).
[25] Carrie Menkel-Meadow et al., Dispute Resolution: Beyond the Adversarial Model 291–93 (4th ed. 2025).
[26] N.D. Cent. Code Ann. § 16.1-10-04.2 (West) (providing that “artificial intelligence” excludes tools explicitly programmed for grammar, spelling, or word-suggestion assistance, clarifying that basic editing software is not subject to disclosure).
America’s current domestic affairs are in the hands of one man, Donald J. Trump. The 45th President of the United States quickly instituted an oppressive governance system utilizing executive orders, intimidation, and division.[1] President Trump continues to violate the Constitution and Federal Law in his second administration.[2] One of President Trump’s recent decisions, federalizing the National Guard (“Guard”) and deploying agents into Democratic Party-run cities, motivated a federal court challenge in California.[3] District Court Judge Charles R. Breyer of the Northern District of California recently issued several decisions since California Governor Gavin Newsom sued President Trump in response to the presidential federalization of the California Guard.[4] Judge Breyer’s latest opinion addressed jurisdictional arguments and stated that President Trump exceeded his authority.[5] Such broad sweeps of executive power have not been exercised analogously in years.[6] As more courts raise their gavels to review executive decisions, America’s ideological divides grow.
Historical Context
This is not the first time a president has directed the Guard.[7] Importantly, the Guard is a “reserve military force,” composed of majority part-time soldiers who meet for training throughout the year while holding civilian jobs.[8] Each state and territory have a Guard.[9] In general, a current president or state governor may deploy the Guard in response to local emergencies, civil unrest, or public health crises.[10] Conventionally, a president must receive governor authorization before deployment.[11] The last time a president skipped governor authorization for Guard deployment was 1965.[12] President Johnson “invoked his legal authority to deploy the national guard” without the consent of Governor Wallace of Alabama, a prominent segregationist of the time, who opposed the Civil Rights Movement.[13] President Bush faced an opportunity to exceed executive authority when Governor Blanco of Louisiana refused to deploy the Guard following Hurricane Katrina in 2006, but Bush weighed against federalization.[14]
Trump’s justification for executive overreach does not resemble prior emergency circumstances warranting the Guard. On August 11, 2025, President Trump manufactured a “Crime Emergency” in Washington DC by executive order.[15] The order states: “the city government’s failure to maintain public order and safety has… dire[ly] impact[ed]… the Federal government’s ability to operate efficiently.”[16] But crime is not a sufficient statutory justification for an emergency federalization.[17]
I. The President’s Justification
Notably, Trump does not justify deployment of the Guard under the Insurrection Act or the Posse Comitatus Act.[18] Rather, a century old law permitting Guard federalization by a president, “if there is a rebellion or danger of rebellion against the . . .US or, if the president is unable with the regular forces to execute the laws . . . .”[19] Trump alleges Guard usurpation is crucial to public safety, “aiding [in] a necessary crackdown on crime, and bolstering immigration enforcement.”[20]
Statutorily, 10 U.S.C.S. § 12406 does not list “public safety purposes” as a legitimate reason for Guard deployment.[21] Governor Newsom accurately characterized the militarization when he said that President Trump “commandeered 2,000 of our state’s National Guard members to deploy on our streets. Illegally, and for no reason.”[22] President Trump’s critics agree the White House “is trampling on longtime norms against the domestic use of military” and at risk of transforming the Guard “from an apolitical force” to “another arm of the Trump administration.”[23]
II. A Snapshot of the Newsom v. Trump Decisions
Litigation began when Newsom sought a temporary restraining order (TRO) preventing defendants, President Trump, from federalizing the California Guard.[24] The principal issue was Trump’s procedural violation of 10 U.S.C.S. § 12406, which requires “[o]rders issued through the governor[s]” when federalizing the Guard.[25] Recognizing a clear statutory procedural violation, Judge Breyer granted the TRO and pointed out constitutional violations.[26] Unsurprisingly, defendants appealed the TRO to the 9th circuit.[27] Then, the Court stayed the TRO and affirmed President Trump’s arguably unconstitutional behavior.[28]
The 9th Circuit determined “the President lawfully exercised his statutory authority.”[29] The Court found that President Trump received governor authorization by “transmittal of the order to the Adjutant General of the California National Guard—who is authorized . . .to ‘issue all orders in the name of the Governor.’”[30] The Court also undermined Judge Breyer’s redress by adding that even if this transmission was insufficient to satisfy the procedural requirement, the district court likely exceeded its scope of relief.[31]
The 9th Circuit’s reversal of Judge Breyer’s injunctive relief illustrates the ideological divide exacerbated by President Trump’s executive actions. Circuit courts and SCOTUS support the executive.[32] Governor Newsom and Judge Breyer do not stand alone against President Trump’s federalization of the Guard.[33] As more challenges to executive authority arise throughout Trump’s second administration, district judges must take a stand. American law faces a critical point.
III. The Future of Breyer’s Ruling
Although federal district court judges challenge President Trump’s decisions, higher courts located close to the President continue to support his decisions.[34] SCOTUS directly supports unconstitutional actions as the highest court, effectively sitting in Trump’s back pocket.[35] Without strong checks and balances to restrain branches of government from exceeding their authority, America risks integrated corruption and loss of state sovereignty. Given the rise of “shadow docket rulings” in the Trump administration, SCOTUS is likely to review Newsom v. Trump.[36]
Conclusion
In conclusion, courts and citizens should be concerned about clear abuses of executive authority. Trump’s federalization of the National Guard, without the consent of state governors, violated the procedural requirements of 10 U.S.C.S. § 12406.[37] The President’s justification for deployment of America’s reserve military force in democratic cities amounts to a manufactured crime emergency based on ideological differences. This is not a system of governance that states should support. Governor Newsom summarized the issue, “[t]his is beyond incompetence — this is [Trump] intentionally causing chaos, terrorizing communities, and endangering the principles of our great democracy. It is an unmistakable step toward authoritarianism. We will not let this stand.”[38]
Moving forward, district court judges should prepare for the oncoming ideological boxing match. It is permissible and encouraged for courts to review executive actions, as the Founders intended.[39] Hopefully, America can return to healthy political discourse and courts will uphold the rule of law despite political pressures.
[18] Elizabeth Goitein, Unpacking Trump’s Order Authorizing Domestic Deployment of the Military, Brennan Ctr. for Just. (June 10, 2025) https://www.brennancenter.org/our-work/analysis-opinion/unpacking-trumps-order-authorizing-domestic-deployment-military (stating Trump likely chose this approach because of the familiarity of abuse within the Insurrection Act).
[26] Newsom v. Trump, No. 25-cv-04870-CRB, 2025 U.S. Dist. LEXIS 112430 (N.D. Cal. Sept. 9, 2025) (“[Trump’s] actions were illegal—… violating the Tenth Amendment to the United States Constitution.”).
[34]See generally Trump v. CASA, 145 S. Ct. 2540 (2025) (prohibiting district court’s grant of a universal injunction addressing birthright citizenship); Trump v. United States, 603 U.S. 593 (2024) (recognizing “some” immunity for the president from criminal prosecution for official acts); Trump v. Wilcox, 145 S. Ct. 1415 (2025) (staying injunction granted by district court in response to firing NLRB workers); Trump v. Boyle, No. 25A11, 2025 U.S. LEXIS 2695 (U.S. July 23, 2025) (affirming Wilcox decision as precedent); Amy Howe, Supreme Court agrees to decide the fate of Trump’s tariffs, SCOTUS Blog (Sept. 9, 2025) https://www.scotusblog.com/2025/09/supreme-court-agrees-to-decide-the-fate-of-trumps-tariffs/.
Dee Farmer, a pro se litigant, is recognized as the first transgender person heard by the Supreme Court.[1] Dee, who never graduated high school, wrote her original complaint by hand from a prison cell and filed it with the U.S. District Court for the Western District of Wisconsin .[2] Dee spent most of her time in the sparsely populated prison library to avoid taunting, harassment, and violence from other prisoners. There, she taught herself the law to advocate for her rights. When she was beaten and raped by another prisoner two weeks after being transferred to a high-security prison, she filed a civil lawsuit that took her all the way to the Supreme Court in 1994.
As discussed below, Dee’s experience demonstrates that the landscape of the carceral system and the legal system remains largely unchanged. This injustice leaves victims of sexual violence in prison the same singular avenue for justice three decades later—proving that their case meets the stringent deliberate indifference standard.
Dee’s case forced the U.S. to acknowledge its willful blindness of prison rape, yet the “brutality” that is the “equivalent of torture”[3] continues to be a reality of confinement. The Prison Rape Elimination Act (PREA) largely inspired by Farmer—as passed unanimously by Congress in 2003 and signed into law by President George W. Bush in 2003.[4] The PREA created the National Prison Rape Elimination Commission, which was tasked with “identifying ways to curb the incidence of sexual assaults in prison.”[5] The Commission ultimately submitted standards to the DOJ for review, and the final standards were published in the Federal Register in 2012.[6]
So far as incentivizing prison reform goes, it lacks teeth.[7] Though the PREA established new standards for compliance, improved data collection, and increased general awareness, noncompliance is penalized by a mere loss of 5% of grant funds.[8]Most notably, the PREA doesn’t provide a private right of action that victims could use to sue.[9] Absent sufficient government intervention, prisoners continue to face sexual violence as though it were a condition of their imprisonment.[10] The most recent statistics available from the Bureau of Justice Statistics reported 36,264 allegations of sexual victimization in 2020.[11]
Farmerv. Brennan is now the binding precedent for “failure to protect” claims under the Eighth Amendment.[12] It is one of the most cited cases in U.S. history.[13] The Eighth Amendment prohibits “cruel and unusual punishment.”[14] In Farmer, the Court created a two-part test: that a plaintiff can establish a “failure to protect” claim in violation of the Eighth Amendment by showing that (1) they are “incarcerated under conditions posing a substantial risk of serious harm” and (2) that prison officials are deliberately indifferent “to inmate health or safety.”[15]
This ruling may seem like a victory for prisoners’ rights, but plaintiffs routinely fail to meet the high standard of “deliberate indifference” set by the court in Farmer. This was Dee’s fate. She lost her case on remand.[16] The first prong of the Farmer test does not typically prove to be a legal obstacle for victims of sexual violence, but the second prong is a different story. What exactly is deliberate indifference? The term “deliberate indifference” originated from a 1976 case, Estelle v. Gamble,[17] in which the Supreme Court defined this standard to mean “a state of mind more blameworthy than negligence.”[18]
Dee argued for a lesser objective standard similar to civil law’s negligence standard. The Court expressly rejected Dee’s argument and instead adopted the subjective standard of criminal recklessness to prove deliberate indifference.[19] Under this standard, a prison official will only be held liable if they subjectively knew of the risk of harm and, despite their knowledge of the risk, failed to take reasonable action to prevent it. Put another way, the victim must show that the prison official knew there was a risk of harm and failed to respond reasonably. Under this standard, the claim lives or dies by the proof of what was in the officials’ mind–not the abuse itself, regardless of how extreme.[20] There is no specific data on these cases, but a 2020 analysis of 1,500 failure to protect cases found that less than 1% were successful.[21] Plaintiffs often fail to surpass opposing counsel’s motion for summary judgment.[22]
For a prisoner, the legal obstacles they must face to seek justice are nearly insurmountable. Even if the standard were lessened to the civil negligence standard, prisoners still face the Prison Litigation Reform Act, which created a slew of significant roadblocks to bringing suit.[23] The greatest roadblock, however, is fear. Victims often face psychological and social difficulties in the process and decision to confront their abuser. An incarcerated victim faces these same fears from behind bars. Prisons are plagued with hyper-masculinity, vastly unequal power dynamics, and stigmatized beliefs of sexual orientation and gender identity.[24] The mental and physical risk to safety posed by bringing lawsuit is an extreme deterrent. The standard should be reformed, and a higher threat of liability could incentivize change in prisons. But not in the service of prison reform. That is the government’s responsibility. It should be reformed for the same reasons that any standard should be reformed—in the service of equitable justice.
“[M]any inmates,” Justice Blackburn wrote in Farmer, “discover that their punishment degenerates into a reign of terror unmitigated by the protection supposedly afforded by prison officials.”[25] The United States retains toothless federal regulations, narrow avenues of legal relief, and a society that more commonly recognizes prison rape as a punchline rather than a problem. The government frequently fails to meet its responsibility to protect incarcerated citizens.[26] Instead, the United States government chooses to primarily place the burden of rectifying the country’s morality squarely on the backs of incarcerated victims of sexual violence. The government’s deliberate indifference—if put to the test—should not survive.
[7] Elizabeth A. Reid, The Prison Rape Elimination Act (PREA) and the Importance of Litigation in Its Enforcement: Holding Guards Who Rape Accountable, 122 Yale L. J. 2082 (2013).
[8] Prison Rape Elimination Act (PREA), BJA, https://bja.ojp.gov/program/prea/overview (last visited Sept. 17, 2025); Subsequent amendments the PREA in 2016 and 2018 have followed suit. Justice For All Reauthorization Act of 2016, Pub. L. No. 114–324, 130 Stat. 1948 (2016); United States Parole Commission Extension Act of 2018, Pub. L. No. 115–274, 132 Stat. 4160 (2018).
[11] Emily D. Buehler & Shelby Kottke-Weaver, Bureau of Just. Stat., Sexual Victimization Reported by Adult Correctional Authorities, 2019–2020 – Statistical Tables 1 (2024).
[12] Dee Deidre Farmer & D. Dangaran, Farmer at 31: Historicizing Trans Rights in Prison through Intergenerational Doctrine, 48 N.Y.U. Rev. L. & Soc. Change 321, 326 (2025).
[22]See Ciara N. Cannoy et al., Legal Digest, Standard for Deliberate Indifference to Inmate Safety and Medical Needs, 52 J. Am. Acad. Psych. & L. 128, 1–3 (2024).
[24]See Craig Haney, The Perversions of Prison: On the Origins of Hypermasculinity and Sexual Violence in Confinement, 48 Am. Crim. L. Rev. 121, 127–28, 134–35, 139 (2011); See also Alysia Santo et al., In New York Prisons, Guards Who Brutalize Prisoners Rarely Get Fired, Marshall Project (May 19, 2023), https://www.themarshallproject.org/2023/05/19/new-york-prison-corrections-officer-abuse-prisoners.
Error: Only up to 6 widgets are supported in this layout. If you need more add your own layout.
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.
