Volume 93.6

October

2026

Courts rely on legal precedents to resolve legal questions. Should courts rely on factual precedents to resolve factual questions? The idea is not baseless. Courts often rely on prior courts’ decisions to determine general facts, such as recidivism rates, the dangers of a toxin, or the history and tradition of a legal norm. This Article draws attention to this overlooked practice and then poses a key question: How should a court decide about a general fact that another court has previously determined? This Article argues that courts should engage with, but not necessarily follow, prior courts’ factual conclusions. To defend this view, this Article develops a comprehensive framework for understanding and normatively supporting factual precedents. It explains how they structure judicial discretion, guide litigants’ strategies, and enhance the legitimacy of judicial decisions about facts.

A sophisticated legal thinker who wishes to work out a fully developed approach to constitutional adjudication must choose two theories, not one. For unless one takes the implausible view that every single case is an evidentiary wipeout under their preferred first-order theory, something more will sometimes be necessary to decide a case. That something is a second-order theory of constitutional adjudication: a theory that does not purport to make any interpretation more (or less) correct, constitutionally speaking, yet still guides a decision-maker after their preferred first-order interpretive theory has run out. This Article’s thesis is that the debate over second-order constitutional theories is both important and generative. Indeed, the dominant, yet unspoken, second-order theory embraced by today’s Supreme Court—the 51–49 rule, under which each Justice votes for the outcome they think is supported by more first-order evidence than any other outcome, no matter how slight the difference—is far from inevitable. Armed with a better second-order theory, judges who disagree vehemently over how to interpret the Constitution might still find their way to consensus in some of the most weighty and difficult cases of the day.

The Eighth Amendment has long been understood to bar state-inflicted torture. Yet a fundamental paradox persists: The same circumstances that constitute torture sufficient to authorize an individual's capital sentence are routinely present on death row. Drawing on a systematic analysis of state definitions of torture utilized in capital proceedings, this Comment proposes a resolution to this paradox, arguing for the creation of a new, state-informed torture standard consistent with the Supreme Court’s evolving standards of decency framework and better suited to address the diffuse, structural nature of death row conditions than the Court’s existing Eighth Amendment criteria.

Courts are split on whether consumers who purchase defective products suffer an Article III injury at the point of sale when the defect never manifests in their particular product. Courts accepting the benefit-of-the-bargain theory treat overpayment as concrete economic harm; courts requiring defect manifestation reject it as speculative. This Comment argues that courts dismissing the benefit-of-the-bargain theory are wrong. Drawing on the English bill of peace tradition and common law breach of contract and warranty, it demonstrates that overpayment injury is firmly rooted in legal history and tradition. Manifest defect requirements impose a second injury threshold that Article III does not demand.

The Trump administration removes noncitizens to third countries—places they may never have visited—based solely on diplomatic assurances, with no notice, no individualized assessment, and no judicial review. This Comment argues that 8 U.S.C. § 1231(b)(3)’s mandatory prohibition on removal to danger and the Fifth Amendment’s due process guarantee both require process-based judicial review of these determinations. Drawing on the CAT extradition framework and Mathews v. Eldridge, it proposes a four-factor test courts can apply without second-guessing executive foreign policy judgments. D.V.D. v. Department of Homeland Security, before the First Circuit at the time of writing, provides the vehicle.