Volume: 53

At no other point in recent history have the so-called Insular Cases, and their enduring colonial legacy, elicited as intense a debate in Congress, the U.S. Department of Justice, the federal courts, and the territories as right now. Today, these early-twentieth-century cases—which notoriously established a continuing distinction between “incorporated” and “unincorporated” territories—face unprecedented hostility from policymakers, courts, and scholars. Grounded on white supremacist notions of the inferiority of inhabitants in U.S. territories, the Insular Cases finally appear indefensible to modern eyes.

But even if the Supreme Court ever reconsiders the Insular Cases, case law more than a century old will not easily fall away. The Court will still have to wrestle with stare decisis if a majority of the Court is willing to overrule the territorial incorporation doctrine. Arguments against territorial incorporation will need to grapple with the notion that “the respect accorded prior decisions increases, rather than decreases, with their antiquity . . . .” Further, experience shows that however ill-reasoned the Insular Cases may be, judicial reverence (or inertia) might be a powerful counterweight to their repeal.

This Article argues that this should not be the case. Whatever the Insular Cases’ continued validity, neither stare decisis nor their antiquity should protect them from abrogation. The Insular Cases—and specifically, the territorial incorporation doctrine that they stand for—meet every factor that the Supreme Court needs to overrule its own precedent.

The Insular Cases, a series of Supreme Court decisions in the early 1900s concerning the constitutional status of the colonies acquired from Spain at the conclusion of the Spanish-American War, have rightly played a central role in the discussion of Congress’ relationship with the current U.S. territories. Overruling those decisions, which are racist in their rationale, is long overdue. Their repudiation, however, will not change the separate and unequal status of the territories as compared to the states under the Constitution. Because the Constitution distinguishes territories from states, formal decolonization—namely, ceasing to be a territory—is a necessary precondition to equal status under the Constitution (or, as Chief Justice John Marshall once wrote, “complete equality”). Stated in more precise terms, so long as the territories remain territories, their residents will not be equal to the residents of the states under the law. But that formal inequality was always meant to be temporary. The Constitution does not authorize colonial rule indefinitely because the territorial status, properly understood, is impermanent in character. Moreover, to cease to be a territory, the Constitution recognizes only two options: statehood or independence (which includes free association). As this Article demonstrates, the Constitution’s text and related historical practice provide a fresh outlook on how to make the constitutional case for decolonization and bring much-needed equality to the residents of the territories—America’s long-forgotten citizens.

This Essay examines how empire invisibly perpetuates itself through “status manipulation.” “Status” refers to formal polity-person and polity-place relationships, perceived to be well-defined, preestablished, unchanging, and consequential. Such relationships are envisioned as automatically creating rights and powers, as well as obligations, detriments, and exclusions. The gap between the perceived fixity of status and its actual malleability gapes wide in the case of U.S. empire. The ambiguity is the result of choices by U.S. empire builders. “Manipulation” places the emphasis on this intentionality. It also describes the misdirection by which changes to status and the changeability of status sustain colonialism while hiding it from view. The U.S. empire dangles sovereignty before people in some of its colonies. In others, it strings people along in their beliefs that colonial sovereignty already exists. Doing so divides, frustrates, and seduces anti-colonialists. Like parched and starved Tantalus, whose fruit and water are always just beyond reach, inhabitants of the colonies endure degraded statuses that are tantalizingly close to a redemption that never arrives. Studies of the smallest and largest populated U.S. territories, American Samoa and Puerto Rico, illuminate the mechanics. This Essay concludes with a recommendation: Academic critics of colonialism should not allow the uncertainty that status manipulation produces to induce their silence. They should instead speak carefully, listen hard, recognize their errors and fallibility, and acknowledge and correct their mistakes.

In the midst of a debilitating humanitarian crisis in Puerto Rico and high-profile litigation concerning other U.S. territories, scholars, political leaders, and activists have elevated conversations of constitutionallysanctioned inequality into the public spotlight. With respect to Puerto Rico, these conversations focus on its current economic morass and relation to the debate over decolonization. Absent from these important discussions is the role that federal criminal law plays in manifesting Congress’ continued plenary power over U.S. territories. This Article breaks from that pattern and highlights an ignored part of federal criminal jurisprudence: the federal prosecution of local criminal activity in Puerto Rico.

This Article argues that federal prosecution of local criminal activity is an explicit manifestation of the federal government’s continued colonial grasp over the Island. Moreover, it contends that scholars, advocates, and politicians should consider the significance of federal prosecutorial power as they approach decolonization options for the Island. The Article begins by setting the current stage of federal prosecutions on the Island, explaining how local and federal forces often work together in prosecuting federal crimes, and exhibiting how that collaboration has led to a federal system of mass incarceration over which Puerto Ricans have no direct control. The Article next details the jurisprudential evolution of applying federal criminal laws to the Island and highlights the way in which the creation of the Commonwealth of Puerto Rico in 1952 has allowed courts to simultaneously pay lip service to the ideals of liberty and equality on the mainland by invoking the popularly branded “compact theory,” while sanctioning unequal treatment in Puerto Rico. Finally, the Article explores why conversations about decolonization should focus on the federal government’s ability to prosecute local criminal activity.

The Individuals with Disabilities Education Act (“IDEA”) successfully opened the schoolhouse doors to millions of students with disabilities. But more than forty years after its enactment, the law has proven largely inept at confronting the educational inequities faced by the many students with disabilities attending underfunded, high-poverty public schools. This shortcoming is inconsistent with common conceptions of the IDEA: Advocates and policymakers alike treat the IDEA’s rights and privately enforceable remedies as strong, meaningful tools. This Article theorizes that the IDEA’s under-appreciated failures are overlooked because they are the products of the law’s internal structure, undue judicial deference to schools, and litigation that targets procedural injuries rather than substantive educational practices.

The IDEA’s core procedural rights are meant to guarantee students with disabilities an appropriate education in the most integrated setting possible. Yet, in high-poverty schools, virtually none of the law’s promises are realized. The IDEA’s rights are tethered to an assumption that schools are operating with an adequate level of capacity and proficiency, but under-resourced schools lack the ability to ensure either. As a result, the law’s three core principles—procedural rights, appropriate education, and integrated settings—are badly diminished for students with disabilities in high-poverty schools. Essentially, individual students are unable to leverage the IDEA’s rights for meaningful remedies, and they are thwarted by courts when they attempt broader programmatic change. Meanwhile, advocates’ emphasis on enforcing procedural rights merely strengthens the law’s structural weaknesses. Fulfilling the IDEA’s purpose requires a shift in how courts and advocates understand the law’s limitations in under-resourced schools. It also requires a growth in political will to incentivize and fund local solutions aimed at improved student outcomes. This Article proposes a framework for such a shift.

Existing theories and doctrines of free speech have focused on why the freedom to express is indispensable for realizing the values that we treasure, such as truth or democracy. However, how expression facilitates those values is underexplored. This Article proposes a doctrinal framework of free speech consisting of four parts: right of control over one’s information, right to know, right of access to platforms, and behavioral rules of public discussion. These are the constitutive parts that are necessary for the exercise of free speech to be meaningful and effective. After elaborating on these elements, this Article tests the framework by analyzing four cases: the European Union’s Right to Be Forgotten, the information disclosure laws of China, the blocking of Trump’s Twitter account, and the Indian hate speech incident. Those four cases offer a more comprehensive scenario as to how the quadruple framework operates in real contexts.

A massive civil “justice gap” plagues the United States. Every day, low-income Americans—and disproportionately people of color—go without the legal information and representation they need to enforce their rights. This can cost them their homes, jobs, food security, or children. But unmet civil legal needs in housing, employment, and public benefits, for example, are not simply injustices—they are well-documented drivers of poor health, or social determinants of health. Those marginalized by virtue of both race and socioeconomic status are particularly harmed by inaccessibility to justice and also by chronic health conditions and lower life expectancy. When a tenant walks into court alone for an eviction hearing and faces an experienced landlord’s attorney, the tenant is unlikely to prevail, and her eviction can lead to myriad poor health outcomes.

The health justice movement leverages law and policy to advance health equity. In recent years, it has gained tremendous traction, especially due to the COVID-19 pandemic’s spotlight on health disparities. In tandem, the access to justice movement is progressing with the advancement of major federal, state, and local legislation and initiatives. However, the movements have been running on parallel tracks, and their connections have been under-examined. This Article puts the two movements and bodies of scholarship squarely in dialogue with one another.

The ability to assemble, protest, and air grievances in the public sphere of one’s community is not only a cherished right but is also an essential safeguard of other rights. In the Black communities of Cancer Alley, a polluted industrial corridor in Southern Louisiana, the state’s critical infrastructure law has rendered protest on or near the region’s ubiquitous industrial infrastructure a felony. This Note describes the history of critical infrastructure laws in states across the country, as well as the legal challenges brought against critical infrastructure laws and their counterparts. Louisiana’s critical infrastructure law, when intersected with environmental racism, has the potential to disproportionately criminalize protest in Black communities. Equal Protection and First Amendment law do not adequately address this disproportionate censorship of Black communities based on their high concentration of environmental hazards. This Note proposes two solutions: first, Arlington Heights may be read to allow the historical context and history of segregation in a region act as evidence of discriminatory intent; second, Time, Place, and Manner doctrine can be easily expanded to incorporate issues of racial geography.

Prosecutors play a central role both in weaponizing personality disorder labels in capital cases and in oppressing Black, Indigenous, and People of Color (“BIPOC”) within the criminal legal system. This is especially true for antisocial and psychopathic personality disorder labels. Because there are common mechanisms underlying both processes, it is possible that prosecutors’ misuse of these personality disorder labels is susceptible to racialization. Thus, we may contextualize prosecutors’ exploitation of personality disorder labels in capital cases within the larger historical project of upholding white supremacy and subjugating people of color.

As long as the death penalty is vulnerable to implicit biases held by agents within the criminal legal system and subject to racially disparate applications, lawmakers must implement change. Lawmakers must transform the death penalty through implementing evidentiary, educational, and disciplinary safeguards that target each actor involved in these decisions. If these precautions, collectively, are not sufficient, lawmakers must abolish state and federal governments’ power to execute their citizens.

This Note presents the first contemporary empirical study of racial disparities in New York City Police Department (“NYPD”) discipline. Historically, the NYPD, like many departments across the country, applied its enormous disciplinary discretion in secrecy. That changed in June of 2020, when New York City publicly released thousands of civilian complaints and disciplinary decisions. Analysis of these newly released data reveals significant racial disparities in discipline of police officers. More fundamentally, these data demonstrate the NYPD’s extreme leniency towards police misconduct of all kinds and its disregard of recommendations by the Civilian Complaint Review Board. These findings call for greater transparency in New York and around the country. Greater transparency will encourage participation by both officers of color and the public in discourse about police reform, leading to shifts in public opinion and playing an essential role in the pathway to police abolition.

The phrase “legal name” appears everywhere. And wherever it appears, it seems to come with an assumption that it picks out one, clear such name for each person. So, do “legal” names as the phrase is commonly understood really exist? As far as federal and most state law is concerned, it turns out the answer is a clear no.

This article seeks to highlight the legal, moral, and philosophical wrongness of the notion that people have one uniquely identifying legal name. To do that, we survey the status of names in various legal domains, highlighting that legal consensus tends to be that there is no one “correct legal name” for individuals (if anything, people often have many “legal” names). We argue this common notion that every person has a single, clearly defined “legal” name is a kind of collective delusion we all seem to share (emerging somewhere in the late twentieth century), but is not grounded in legal or social reality. To address this harmful delusion, we present a series of ready-to-cite conclusions about the current state of the law and introduce a normative framework for how institutions and individuals ought to choose between people’s various legal names. Engaging with legal theory, feminist philosophy, and philosophy of language, we discuss the social function of names and argue that names enable people to communicate important social information about themselves—which can include their gender, religion, and familial relations. Thus, we conclude by arguing that individuals and legal institutions have a normative responsibility to respect peoples’ preferred legal names, thereby allowing them to authentically represent these facets of their social identities.

History is deeply embedded in federal Indian law. According to jurisprudence, Indians were nonagricultural “savages” prior to 1492. Indians’ supposed lack of sophistication played a vital role in foundational cases determining Indian rights and the extent of tribal sovereignty. The process of stare decisis has resulted in repetition of the principles formulated on the belief in Indian simplicity; consequently, historic ideas of Indians continue to impact present-day Indian rights—often for the worse. This is the time trap.

The time trap is the popular belief that Indian cultures were simple, non-commercial, hunter-gatherers prior to European arrival. Encapsulated within this belief is the idea that indigenous cultures are static and erode as they merge with mainstream society. However, this perception is incorrect: the indigenous peoples of North America had complex societies prior to 1492, including agriculture and expansive trade networks. Indian tribes organically incorporated previously unknown items from Europe, such as the horse and gun, into their cultures. This Article asserts that reexamining how society and the law view Indian history is the key to unlocking the time trap.

This Note considers the question of how to protect cultural property in an era of rising cyberwarfare. The Note argues that the law of armed conflict (LOAC)—also referred to as international humanitarian law (IHL)— should apply to protect the three categories of cultural property which cyberwarfare could affect: real-word cultural property, digitized cultural property (cultural property which has been converted into digital form), and digital cultural property (cultural property which has always existed in digital form). Lastly, this Note argues for a novel interpretation of the 1954 Hague Convention for the Protection for Cultural Property that would encompass digital and digitized cultural property.

At least 228 people executed in the modern era—or more than one in every seven—were right too soon. That is, they had claims in their case that today would render their execution unconstitutional, but were killed because of a legal regime that arrived too late. Roughly 30% of our total include the children and persons with intellectual disability who were executed prior to Roper v. Simmons and Atkins v. Virginia, respectively. But the great majority of the people identified in our study raised claims based on doctrine that had already been clearly established by the Supreme Court. If the lower courts had applied Supreme Court caselaw correctly, these people would have gotten relief. Yet the lower courts resisted the doctrine and for years the Supreme Court did nothing to correct them. This resistance was particularly egregious in Texas and Florida. In Texas, at least 108 people were executed after the Supreme Court had already established the relevant basis for relief, and in Florida, the total is at least 36. At least when it comes to the death penalty, the lower courts seem especially unwilling to follow Supreme Court doctrine that would save a person from execution. The result is a system that routinely kills people even when they are right.

Each year, employers bring hundreds of thousands of temporary foreign workers into the United States only to return them to their communities of origin when their visas end. During their short months working in the United States—whether in agricultural fields, hotels, traveling carnivals, or private homes—many of these workers experience violations of their rights: wages are stolen, injuries are ignored, and those who complain are punished on the spot or sent home.

Temporary foreign workers who choose to file a lawsuit to vindicate their rights typically do so once they are no longer in the United States, often litigating from rural communities in other countries. During litigation, the employers and the employers’ lawyers regularly use the fact that the workers are no longer present in the United States to gain a procedural or substantive advantage in litigation. This strategy, which we call “scorched border” tactics, is a standard litigation practice and is enabled by the very design of temporary foreign work programs, themselves rooted in the United States’ long history of low-wage foreign labor exploitation. Scorched border litigation drives up costs for a deeply under-resourced public interest bar and can chill lawyers’ case selection, shutting down access to justice for some of the most vulnerable of the working poor. However, to date, there exists no study documenting or analyzing this undeniable phenomenon.

This Article documents and critiques scorched border litigation tactics, drawing on a broad range of sources including a survey of practitioners who represent temporary foreign worker (“TFW”) plaintiffs, a collection of case histories, and a review of court rulings. We find that federal court litigation has already adapted to handle the complexities presented by these TFW cases, such as modifying the manner and location of a TFW plaintiff’s deposition. These types of adaptations are not new to experienced lawyers representing TFW plaintiffs and are regularly permitted by courts. However, these adaptations are often so far out of the litigation norm that defense lawyers seek to gain an advantage by creating costly and unnecessary disputes in a case.

The forced adaptation of the civil justice system to the COVID-19 pandemic, however, may open new opportunities for countering scorched border tactics. With courts now experienced in remote proceedings, what was the subject of ridicule or pushback by defense lawyers in TFW cases is suddenly the norm. A review of new pandemic-era federal court rules offers concrete prescriptions for federal district courts on how to proceed when an individual litigant does not reside in the United States. In so doing, we aim to ensure that the return of TFW plaintiffs to their communities of origin after their employment in the United States is over—as is required by the very programs that allow them to work here—can no longer be used by employers to block their access to justice.