Most lawyers know that the Federal Rules of Civil Procedure merged the divergent trial procedures of the common law and of equity, but fewer are familiar with the development of federal appellate procedure. Here too there is a story of the merger of two distinct systems. At common law, a reviewing court examined the record for errors of law after the final trial judgment. In the equity tradition, an appeal was a rehearing of the law and the facts...
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Since 1898, Puerto Rico has been a territory of the United States, meaning that Congress wields plenary power over the Island. Although scholars have highlighted the history and some modern manifestations of this power, conversations about how plenary power affects the territories have largely ignored constitutional criminal procedure.
This Article is the first to center the territory’s criminal legal system within the broader debate over...
Are refusals to provide services for same-sex weddings anti-gay discrimination? The answer, the Supreme Court seems to say, is “no.” Last Term in 303 Creative LLC v. Elenis, the Court held that the Constitution’s Free Speech Clause granted a web designer the right to refuse same-sex wedding services. In so doing, the Court also appeared to opine that the refusal involved no anti-gay discrimination.
Scholarship has yet to explore...
Across the economy, monopolists of all kinds are engaged in “conditional dealing.” This is the practice of unilaterally offering benefits and penalties, or bribes and threats, to induce trading partners to refrain from competing against the monopolist or from dealing with its rivals. Pharma giants offer discounts conditioned on “loyalty,” agricultural monopolists impose “exit penalties” for switching to rivals, and social networks offer...
What kinds of reasons should matter in choosing an approach to constitutional or legal interpretation? Scholars offer different types of reasons for their theories of interpretation: conceptual, linguistic, normative, legal, institutional, and reasons based on theories of law. This Article argues that normative reasons, and only normative reasons, can justify interpretive choice. This is the “normative choice thesis.” This Article formulates...
Sexuality is integral to the human experience. Yet choices related to sexuality—sex, intimate relationships, marriage, pleasure, and childbearing—are often controlled for people with intellectual and developmental disabilities. Discourse on sexuality primarily focuses on acts of sexual violence against this community, emphasizing a victim–perpetrator binary. This binary view directs legal and policy efforts to ameliorate this sexual violence,...
Fourth Amendment jurisprudence governing emergency searches and seizures for mental health evaluation, crisis stabilization, and treatment is in disarray. The Supreme Court has yet to opine on what Fourth Amendment standards apply to these “psychiatric holds,” and lower courts have not, on the whole, distinguished legal standards governing emergency holds from those governing routine criminal procedure.
This Article argues against the...
It is conventional wisdom that the states are free—within wide constitutional parameters—to structure their governments as they want. This Article challenges that received wisdom and argues that the Supreme Court has drawn on an eclectic set of constitutional provisions to develop a broader body of federal constitutional rules of state structure than previously understood.
This Article gathers and systemizes that body of law. It first...
The law does not possess the language that we desperately need to accurately capture the totality of the Palestinian condition. From occupation to apartheid and genocide, the most commonly applied legal concepts rely on abstraction and analogy to reveal particular facets of subordination. This Article introduces Nakba as a legal concept to resolve this tension. Meaning “Catastrophe” in Arabic, the term “al-Nakba” (النكبة) is often...
Social data production—accumulating, processing, and using large volumes of data about people—is a unique form of value creation that characterizes the digital economy. Social data production also presents critical challenges for the legal regimes that encounter it. This Article provides scholars and policymakers with the tools to comprehend this new form of value creation through two descriptive contributions. First, it presents a theoretical...