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Abstract Ableism forms the scaffolding of our immigration laws, policies, and practices, but the operation of this pervasive form of exclusion has been grossly unacknowledged and understudied until now.  In 1882, Congress first codified the exclusion of defective bodies by declaring that, “any lunatic, idiot, or any person unable to take care of himself or herself without becoming a public...

Abstract As jurisdictions across the country grapple with the urgent need to redress the impact of mass incarceration, there has been renewed interest in reforms that reduce the harms punishment inflicts on women.  These "gender-responsive" reforms aim to adapt traditional punishment practices that, proponents claim, were designed "for men."  The push to change how we punish based on gender...

Abstract In this Comment, I examine the ways the United States has managed its borders and population through health-based exclusions that often serve as a proxy for race-based exclusions. I look specifically at how two sexually-transmitted infections (STIs)—syphilis and gonorrhea—became and remain grounds for inadmissibility. Since 1891, certain noncitizens entering the U.S. must be screened for...

Abstract No one deserves to die just because they use drugs. Yet, policies and practices in jails and prisons around the country continue to facilitate the death, pain, and suffering of people who use drugs by refusing to properly screen and medically manage withdrawal for persons in custody. In Estelle v. Gamble, the U.S. Supreme Court established a constitutional right for incarcerated persons...

Abstract Recently, scholars have uncovered many ways in which our traditional understandings of the U.S. Constitution have failed to grapple with American empire and colonialism. This work has shown that the nation’s history of mistreating Indigenous peoples is constitutive of its legal order. In this Article, I provide evidence of a similar kind of imperialistic effect in the realm of statutory...

Abstract Recent elections in the United States have commanded national and international attention with voting rights becoming a leading concern for Americans. Though the American public and the judicial and political institutions that represent the American people understand the importance of voting to the health of a democracy, the voting rate among eligible voters in the United States pales in...

Abstract Over the last decade, the United States has become the world’s top producer and leading exporter of oil and gas—a change with dramatic geopolitical and climate implications. At the root of this ascendency is a legal framework around oil and gas extraction in the United States that empowers extractive industry to dismantle community opposition, undermine local governance, and entrench...

Abstract Ilanoli isht unowa. We tell our own stories. A single historical event has many stories. Although this nation’s official chronicle expected and even hoped for Indigenous peoples to fade away, we are still here. Our histories are marked by resistance, survival, sovereignty, and renaissance. Only now, in the later stages of the American experiment, do our histories have the chance to...

Abstract In September 2020, California Governor Gavin Newsom signed Assembly Bill (AB) 2147, a bill creating an expedited expungement process for prisoners in California’s Conservation Camp Program. This bill purportedly removed a barrier that kept formerly incarcerated firefighters locked out of postrelease employment as professional firefighters. Experts and fire camp workers alike praised the...

Free Speech Versus the First Amendment The digital age has widened the gap between the judge-made doctrines of the First Amendment and the practical exercise of free speech. Today, speech is regulated not only by territorial governments but also by the owners of digital infrastructure. This has made First Amendment law less central and the private governance of speech more central. When the free...

Abstract The abolitionist movement seeks to fundamentally dismantle the prison industrial complex. Modern abolitionists recognize that mass incarceration of Black and Brown people is twenty-first century slavery. True abolition, they note, cannot be realized by merely tinkering with the carceral state. Instead, the complete elimination of modern-day badges and incidents of slavery must occur. The...

Abstract To be incarcerated is to be deprived of the choices available to those in the free world. In the absence of those choices, carceral facilities dictate the ways that individuals may engage. If an incarcerated person wants to communicate with someone who is not in their facility, they have very limited options. Because of the extended erosion of attorney-client privilege, for years...

Abstract The United States is experiencing a significant rise in the prevalence of asthma and other debilitating respiratory and cardiovascular ailments that disproportionately burden low income and marginalized Americans. This is due in large measure to climate change, which is responsible for increasingly devastating air quality events—including wildfires and drought—that trigger these serious...