Digital Commons Network^™

Guido Calabresi’S “Other Justice Reasons”, Adam Davidson

Public Law and Legal Theory Working Papers

No abstract provided.

The Shadow Of The Law Of The Police, Adam Davidson

Public Law and Legal Theory Working Papers

Joanna Schwartz’s Shielded: How the Police Became Untouchable is, in many ways, a triumph. It catalogues the laws regulating police with a breadth and depth unexpected from a book targeted to a popular audience, and it does so in gripping style. Although her ability as a researcher is well known to those who have encountered her earlier work, it is Schwartz’s ability as a storyteller that sets Shielded apart and makes the stakes of these doctrinal discussions clear. Admittedly, for those lawyers, judges, and academics who come to Shielded already familiar with Schwartz’s academic work, there is little new analytical …

Private Security And Public Police, Ben Grunwald, John Rappaport, Michael Berg

Coase-Sandor Institute for Law & Economics Research Paper Series

Private security officers outnumber police by a wide margin, and the gap may be growing. As cities have claimed to defund the police, many have quietly expanded their use of private security, reallocating spending from the public to the private sector. It is difficult to know what to make of these trends, largely because we know so little about what private security looks like on the ground. On one prevalent view of the facts, a shift from public to private security would mean little more than a change of uniform, as the two labor markets are deeply intertwined. Indeed, academics, …

Trade Secrecy's Information Paradox, Christopher Buccafusco, Jonathan S. Masur, Deepa Varadarajan

Coase-Sandor Institute for Law & Economics Research Paper Series

Trade secret law is meant to encourage socially beneficial behaviors by permitting firms to protect their investments in the creation of valuable information. In theory, the ability to protect valuable information will make firms more likely to create that information in the first instance. But the law can also be used to shield socially harmful behaviors from public oversight. Firms can assert trade secret protection to prevent journalists, watchdogs, and criminal defendants from learning whether they are engaged in dangerous, wrongful, or biased activity. Ideally, trade secret law should sort socially beneficial uses from socially harmful ones, permitting only the …

Seizure Or Due Process? Section 1983 Enforcement Against Pretrial Detention Caused By Fabricated Evidence, Jorge Pereira

University of Chicago Law Review

Can an individual who was held in pretrial detention but not criminally convicted as a result of fabricated evidence raise a due process claim under 42 U.S.C. § 1983? The answer is unclear. In 2017, the Supreme Court in Manuel v. City of Joliet held that claims for unlawful pretrial detention are governed by the Fourth Amendment. Since then, the Seventh Circuit has asserted that the Fourth Amendment is the only source of redress under § 1983 for wrongful pretrial detention caused by fabricated evidence. By contrast, several circuits have opined that Manuel does not foreclose the possibility that individuals …

Decarcerating Immigrant Detainee Medical Care: A Path To Doctrinal Redemption, Kieran Dosanjh

University of Chicago Law Review

Government detention is a quid pro quo: the government may deprive persons of their physical liberty, but in exchange, it owes them a level of care. The critical question is, how much care does the Constitution require the government to provide? In a series of federal judicial decisions (collectively, the detainee medical care doctrine), courts have found that the Constitution requires different standards of care for different classes of government detainees. These courts’ standard of care for immigrant detainees is erroneous. Modern U.S. immigration detention’s descriptive resemblance to criminal confinement has prompted courts to (wrongly) find that immigrant detainees are …

Prosecutors, Race, And The Criminal Pipeline, Hannah Shaffer

University of Chicago Law Review

This Article presents evidence that some state prosecutors use their discretion to reduce racial disparities in criminal sentences. This finding challenges the prevailing view that prosecutors compound disparities. Given prosecutors’ positions as mediators in a sequential system, this Article analyzes how prosecutors respond to disparities they inherit from the past—and interprets their impacts in light of the accumulated disparities that already exist when they first open their case files. Specifically, I estimate how the sentencing penalty for prior convictions differs by defendant race using North Carolina state court records from 2010 to 2019. I find that the increase in the …

Law School Record, Vol. 70, No. 1 (Fall 2023), Law School Record Editors

Law School Record

• Message from the Dean
• Law School Faculty Shaping the Law with Their Ideas
• Lies and the Law
• With Two Generous Gifts, Pavel Malyi, LLM ’95, Promotes the Rule of Law Internationally
• Three Alumni to Clerk on US Supreme Court in 2023–2024 Term
• Art and the Law
• The Producers
• Law School Clinic Secures US Supreme Court Win in ICWA Case
• Student Q&A
• Law School Student and Alumna Win Coveted New Venture Awards
• Graduation 2023
• Chicago Unbound
• Scenes From Orientation
• Development News
• In Memoriam
• Meet the Class of 2026

Vagueness And Federal-State Relations, Joel S. Johnson

University of Chicago Law Review

This Article aims to clarify the content of the void-for-vagueness doctrine and defend its historical pedigree by drawing attention to a fundamental aspect of the Supreme Court’s vagueness decisions—that vagueness analysis significantly depends on whether the law at issue is a federal or state law. That simple distinction has considerable explanatory power. It reveals that the doctrine emerged in the late nineteenth century in response to two simultaneous changes in the legal landscape— first, the availability of Supreme Court due process review of state penal statutes under the Fourteenth Amendment, and second, a significant shift in how state courts construed …

Droughts Of Compassion: The Enduring Problem With Compassionate Release And How The Sentencing Commission Can Address It, Nathaniel Berry

University of Chicago Law Review

Compassionate release, guided by 18 U.S.C. § 3582(c)(1)(A), allows a district court to reduce a previously imposed criminal sentence if “extraordinary and compelling reasons” warrant a reduction. Congress delegated the task of describing what constitutes an extraordinary and compelling reason to the U.S. Sentencing Commission. Following the passage of the First Step Act of 2018, most circuit courts held the Commission’s policy statement describing extraordinary and compelling reasons inapplicable, and that until the Commission updated its policy statement, courts enjoyed the discretion to determine what circumstances justify compassionate release.

e. Many have celebrated this newfound discretion and its potential to …

Law School Announcements 2023-2024, Law School Announcements Editors

Announcements

• Officers and Faculty
• The Law School - History
• Programs of Instruction
• Curriculum
• Student Activities and Organizations
• Funds and Endowments

The Fourth Amendment Without Police, Shawn E. Fields

University of Chicago Law Review

What role will the Fourth Amendment play in a world without police? As academics, activists, and lawmakers explore alternatives to traditional law enforcement, it bears asking whether the amendment primarily tasked with regulating police investigations would also regulate postpolice public safety agencies. Surprisingly, the answer is often no. Courts are reluctant to recognize protections from government searches or seizures outside criminal investigations, and they are even more reluctant to require probable cause or a warrant for such conduct. Thus, by removing most public safety functions outside the criminal sphere, abolitionists also move intrusive government conduct outside these traditional strictures and …

Bringing Up The Bodies, Bennett Capers

University of Chicago Legal Forum

Allow me to begin with a scene from one of my favorite novels of the last twenty years. The novel is Hilary Mantel’s Bring Up the Bodies, ¹ the second in her award-winning trilogy of historical novels about Thomas Cromwell and King Henry VIII.²

By the start of Bring Up the Bodies, King Henry VIII has had his first marriage annulled and is now married to Anne Boleyn. Indeed, Anne Boleyn is pregnant, and the king is optimistic about a male heir. But the king already has eyes on Jane Seymour, and when Anne Boleyn miscarries, the king is …

Abortion Experts, Aziza Ahmed

University of Chicago Legal Forum

No abstract provided.

Summary Of Impact: 2022-2023, Coase-Sandor Institute For Law And Economics

Academic Center Annual Reports

No abstract provided.

Annual Report: 2020-2023, Constitutional Law Institute

Academic Center Annual Reports

No abstract provided.

The January 6 Insurrection And The Problem Of Constitutional Guardianship, Aziz Huq

Articles

No abstract provided.

Democracy's Other Boundary Problem: The Law Of Democratic Disqualification, Tom Ginsburg, Aziz Huq, David Landau

Articles

Almost all national constitutions contain one or more ways to disqualify specific individuals from political office. Indeed, the U.S. Constitution incorporates at least four overlapping pathways toward disqualification. This power of disqualifying specific individuals or groups stands at the heart of the complex project of maintaining democratic rule. In practice, disqualification can work both as an instrument for preserving democratic rule and also as a knife against it. This Article is the first to systematically analyze the complex positive and normative questions raised by disqualification. We offer both a positive account of the function that disqualification plays in constitutional ordering …

Statistical Discrimination, Sonja Starr

Articles

The Supreme Court has emphatically and repeatedly rejected efforts to justify otherwise-illegal discrimination against individuals by resort to statistical generalizations about groups. But practices that violate this principle are pervasive and largely ignored or even embraced by courts, lawyers, and law scholars. For example, many health care fields, in seeming contravention of antidiscrimination statutes, make use of explicitly racialized diagnostic algorithms that make it harder for Black patients to access care than non-Black patients with identical symptoms. Moreover, the justice system itself has embraced numerous similar practices, including demographic and “sociocultural” adjustments of intellectual-capacity assessments for defendants facing the death …

Be Careful What You Wish For, Albert W. Alschuler

Public Law and Legal Theory Working Papers

[A]ny change in sentencing practices is likely to be an improvement. Judge Marvin Frankel in 1973 ¹

Fifty years ago, Marvin E. Frankel published an elegant, timely, and extraordinarily influential book, Criminal Sentences: Law Without Order. Four years after this book called for the appellate review of sentences and for greatly limiting the discretion of both sentencing judges and parole boards, California became the first state to limit sharply judicial sentencing discretion and abolish parole.²

Twenty other states joined the reform movement before Congress embraced the move from individualized to wholesale sentencing in 1984.³ The Sentencing Reform Act …

The Joint Venture Exception In The International Silver Platter Doctrine: Variability And Devaluation Of Cooperation, Jacqueline Pecaro

University of Chicago Law Review

This Comment examines the joint venture exception in the international silver platter doctrine in the context of the use of wiretaps in federal narcotics cases. Under the international silver platter doctrine, evidence obtained through searches (like wiretaps) by foreign law enforcement on foreign soil and under foreign law is admissible in U.S. courts. The joint venture exception qualifies the international silver platter doctrine: if participation by U.S. law enforcement in a wiretap by foreign law enforcement on foreign soil constitutes a joint venture, then evidence obtained from the search is admissible only if the wiretap was reasonable under the Fourth …

Reducing Prejudice Through Law: Evidence From Experimental Psychology, Sara Emily Burke, Roseanna Sommers

University of Chicago Law Review

Can antidiscrimination law effect changes in public attitudes toward minority groups? Could learning, for instance, that employment discrimination against people with clinical depression is legally prohibited cause members of the public to be more accepting toward people with mental health conditions? In this Article, we report the results of a series of experiments that test the effect of inducing the belief that discrimination against a given group is legal (versus illegal) on interpersonal attitudes toward members of that group. We find that learning that discrimination is unlawful does not simply lead people to believe that an employer is more likely …

The Visibility Trap, Kate Redburn

University of Chicago Law Review

In August 2021, the Indiana Court of Appeals prohibited a transgender teenage boy (H.S.) from changing the gender marker on his birth certificate. Because he was fifteen at the time, his parents had filed the petition on his behalf.¹ As his parents testified, changing the gender marker on a young trans person’s birth certificate is more than a formality. It makes it possible for them to obtain a passport and driver’s license that match their identity, helping to avoid incongruities in gender regulation that can run the gambit from confusing to dangerous.²

The appellate panel was split. Legally …

Law School Announcements 2022-2023, Law School Announcements Editors

Announcements

• Officers and Faculty
• The Law School - History
• Programs of Instruction
• Curriculum
• Student Activities and Organizations
• Funds and Endowments

Untangling The Prison Mailbox Rules, Mario Ramirez

University of Chicago Law Review

Unlike typical litigants, pro se prisoners are unable to deliver filings to court or to have an attorney do so on their behalf. Such prisoners are forced to rely on their prisons’ mailing systems to file documents, which often results in those documents reaching the court after the applicable deadlines. Accordingly, the Supreme Court created a “prison mailbox rule” in Houston v. Lack, under which some filings by prisoners are considered filed when they are given to prison officials for mailing, rather than when they reach the court.

Defining the exact reach of that prison mailbox rule has created considerable …

Kids Are Not So Different: The Path From Juvenile Exceptionalism To Prison Abolition, Emily Buss

University of Chicago Law Review

Inspired by the Supreme Court’s embrace of developmental science in a series of Eighth Amendment cases, “kids are different” has become the rallying cry, leading to dramatic reforms in our response to juvenile crime designed to eliminate the incarceration of children and support their successful transition to adulthood. The success of these reforms represents a promising start, but the “kids are different” approach is built upon two flaws in the Court’s developmental analysis that constrain the reach of its decisions and hide the true implications of a developmental approach. Both the text of the Court’s opinions and the developmental and …

Neither Here Nor There: Wire Fraud And The False Binary Of Territoriality Under Morrison, Jason Petty

University of Chicago Law Review

No abstract provided.

The Law And Economics Of Animus, Andrew T. Hayashi

University of Chicago Law Review

People sometimes want to harm other people. This truism points to a blind spot in law and economics scholarship, which generally assumes that people are indifferent to the effects of their actions on other people. Diverse areas of the law, such as hate-crime legislation and constitutional equal protection doctrine, reside in this blind spot because they are premised on the existence of animus. I argue that the assumption of indifference unnecessarily limits law and economics analysis and that it is both possible and fruitful to incorporate animus into law and economics. I show that doing so leads to new insights …

Experimental Jurisprudence, Kevin Tobia

University of Chicago Law Review

“Experimental jurisprudence” draws on empirical methods to inform questions typically associated with jurisprudence and legal theory. Scholars in this flourishing movement conduct empirical studies about a variety of legal language and concepts. Despite the movement’s growth, its justification is still opaque. Jurisprudence is the study of deep and longstanding theoretical questions about law’s nature, but “experimental jurisprudence,” it might seem, simply surveys laypeople. This Article elaborates on and defends experimental jurisprudence. Experimental jurisprudence, appropriately understood, is not only consistent with traditional jurisprudence; it is an essential branch of it.

An Abolitionist Critique Of Violence, Allegra Mcleod

University of Chicago Law Review

The violence experienced by young people of color in the city is multidimensional—both interpersonal and structural. So many of the young have to swallow their rage as they are surveilled in stores and on the streets, as they are targeted by cops for endless stops and frisks, as they are denied jobs, as their schools are closed, and as they are locked in cages by the thousands. For some, the violations and the deprivation turn outward. The instrumental use of violence by some young people becomes a rational adaptive strategy in response to racial and economic oppression. For some of …