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...
There are currently over a million people enslaved in the United States. Under threat of horrendous punishment, they cook, clean, and even fight fires. They do this not in the shadow of the law but with the express blessing of the Thirteenth Amendment’s Except Clause, which permits enslavement and involuntary servitude as punishment for a crime.
Despite discussions of this exception in law reviews, news reports, and Netflix documentaries,...
Integration has long been a central tenet of U.S. disability law. In both doctrine and scholarship, however, disability integration has been understood to operate in only one direction: integrating disabled persons into mainstream society. This conventional approach has overlooked a different model, inverse integration, whereby nondisabled persons enter or participate in disability-focused settings or activities. As this Article demonstrates, inverse...
The 2020 mass protests in response to the deaths of George Floyd and Breonna Taylor had a significant impact on American corporations. Several large public companies pledged an estimated $50 billion to advancing racial equity and committed to various initiatives to internally improve diversity, equity, and inclusion. While many applauded corporations’ willingness to engage with racial issues, some considered it further evidence of corporate capitulation...
This Article interrogates the current and future role of employer-sponsored health insurance in reproductive autonomy, revealing the impact that employers’ coverage choices have on access to reproductive care and the legal infrastructure that prioritizes employer choice over individual autonomy.
Over half of the population depends on employers for health insurance. Laws regulating employer plans give employers exceptionally wide latitude...
On January 1, 2022, the Arizona Supreme Court announced the most radical change to the American jury in nearly thirty-five years: the elimination of peremptory strikes. Arizona’s move is part of a broader trend of states experimenting with new ways to counter racial exclusion in the selection of juries after decades of federal inaction. Perhaps as noteworthy as the reforms themselves is the way in which many have come about: Rather than announcing...
In myriad areas of public life—from voting to professional licensure—the state collects, shares, and uses sex and gender data in complex algorithmic systems that mete out benefits, verify identity, and secure spaces. But in doing so, the state often erases transgender, nonbinary, and gender-nonconforming individuals, subjecting them to the harms of exclusion. These harms are not simply features of technology design, as others have ably written....