U.S. Territories
Article
Navassa: Property, Sovereignty, and the Law of the Territories
The U.S. acquired its first overseas territory—the island of Navassa, near Haiti—by conceptualizing it as property, rather than a piece of sovereign territory. The story of Navassa shows how the concept of property is central to the law of the territories—and, perhaps, a useful tool going forward.
Article
The Insular Cases Run Amok: Against Constitutional Exceptionalism in the Territories
This Article calls on the Supreme Court to overrule—rather than repurpose—the Insular Cases, and it points to constitutional doctrines beyond their reach that can preserve cultural practices without spawning a crisis of political illegitimacy in the unincorporated territories.
Article
Aurelius’s Article III Revisionism: Reimagining Judicial Engagement with the Insular Cases and “The Law of the Territories”
The Article questions the wisdom of urging judicial overthrow of the Insular Cases without a rubric for the many doctrinal universes that might emerge from such an intervention. Ill-considered judicial intervention will pose a grave threat to procedurally legitimate self-determination and to path-de…
Article
Indigenous Subjects
Centering on the wide-ranging implications of the Supreme Court’s decision in Rice v. Cayetano, this Article argues that the Court’s race jurisprudence threatens Indigenous self-determination and land rights in the territories. It concludes by offering several strategies that litigants can use to pr…
Forum
Political Wine in a Judicial Bottle: Justice Sotomayor’s Surprising Concurrence in Aurelius
This Essay criticizes Justice Sotomayor’s concurring opinion in Financial Oversight and Management Board for Puerto Rico v. Aurelius Investment, LLC. for offering a one-sided and misleading explanation of the island’s constitutional status, and thereby taking sides in Puerto Rico’s decolonization de…
Forum
After Aurelius: What Future for the Insular Cases?
The Court’s recent failure to overrule the Insular Cases represents a missed opportunity to move past the racially motivated doctrine of territorial incorporation. Three cases involving the denial of citizenship, warrantless searches, and unequal benefits in U.S. territories demonstrate the Insular …
Forum
A Dedication to Judge Juan Torruella
Justice Stephen Breyer reflects on his friendship with Judge Juan Torruella.
Forum
On Judge Juan Torruella
Judge José Cabranes describes Judge Juan Torruella’s legacy and his place in the history of Puerto Rico and of the United States.
Forum
How We Study the Constitution: Rethinking the Insular Cases and Modern American Empire
This Essay defends the importance of the Insular Cases in American constitutional development. It explores the extent to which the United States has from the founding been a project of empire as well as the centrality of events surrounding those cases to basic transformations in twentieth century le…
Forum
Closing Remarks on Judge Juan Torruella
These closing remarks were delivered at the Yale Law Journal Insular Cases Panel in Honor of Judge Juan Torruella held via a Zoom conference.
Note
Island Judges
Tracing the evolution of territorial courts over the last half century, this Note argues that prevailing justifications for withholding life tenure from federal judges in U.S. territories are now obsolete. It foregrounds the central role that the Judicial Conference has played in preserving two sepa…
Note
Beyond the Critique of Rights: The Puerto Rico Legal Project and Civil Rights Litigation in America’s Colony
In the wake of Hurricanes Irma and Maria, Puerto Ricans were faced with a stark reminder of their second-class citizenship. This Note traces the development of the island’s civil rights movement through the little-known history of the Puerto Rico Legal Project, revealing the power (and limits) of ri…