In Counterman v. Colorado, the Supreme Court decided an imaginary case. It held that Billy Ray Counterman’s conviction could not stand because it did not meet the First Amendment requirements for prosecutions based on threats. But, in fact, Counterman was not convicted for making threats. He was convicted of stalking, under a law that does not require that the defendant threaten anyone to be guilty of the crime. This Article argues that the Supreme Court’s confusion about the most basic facts of the Counterman case was not an aberration but instead reflects broader pathologies in First Amendment jurisprudence.

From Hurricane Katrina to the 2021 West Coast wildfires, recent history shows that prisons are unprepared for natural disasters. As a result, incarcerated people experience smoke-filled cells, toxic flooding, and abandonment in unplanned evacuations. Climate change is accelerating the occurrence of natural disasters, creating pressing issues for modern prison infrastructure. Previous scholarship has explored systemic solutions to the issue of prison climate adaptation, such as climate change mitigation and decreasing prison populations. However, long-term solutions fail to address the immediacy of climate emergencies, which affect prisons now. Incarcerated people trapped in the path of today’s floods and fires need short-term solutions while systemic efforts develop.

In a series of cases stemming from the racist rationales of the Insular Cases, federal courts have created a doctrine that excludes territorial residents from federal elections, thus entrenching their political subordination. The courts have based their decisions on three main principles: First, because the constitutional provisions regarding federal elections refer only to states and are silent as to territories, territorial residents have no right to vote in federal elections. Second, because territorial residents are not a suspect class and do not have a fundamental right to vote, their disenfranchisement is subject to only rational basis review. Third, only statehood or a constitutional amendment can provide such a right. This Note challenges all three principles to provide a constitutional justification for equal enfranchisement.

Section 9-609 of the Uniform Commercial Code, which has been enacted in every U.S. state, authorizes a secured lender to seize the property of a debtor in default without judicial process. The only limit to this power is that the lender cannot “breach the peace” in the process of repossession. This expansive right of self-help has spawned a $1.7 billion “asset recovery” industry in the United States that undertakes hundreds of thousands of repossessions every year. Many of these repossessions lead to violence. Lawyers, judges, and scholars justify the powerful right of self-help by pointing to its roots in the ancient common law right of recaption. The early cases they rely on, however, share little in common with the modern world of self-help repossession. This analysis also leaves out a more relevant history—the history of American slavery.