Digital Commons Network^™

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 …

Capitalizing On Crisis: Chicago Policy Responses To Homicide Waves, 1920–2016, Robert Vargas, Chris Williams, Phillip O’Sullivan, Christina Cano

University of Chicago Law Review

This Essay investigates Chicago city-government policy responses to the four largest homicide waves in its history: 1920–1925, 1966–1970, 1987–1992, and 2016. Through spatial and historical methods, we discover that Chicago police and the mayor’s office misused data to advance agendas conceived prior to the start of the homicide waves. Specifically, in collaboration with mayors, the Chicago Police Department leveraged its monopoly over crime data to influence public narratives over homicide in ways that repeatedly (1) delegitimized Black social movements, (2) expanded policing, (3) framed homicide as an individual rather than systemic problem, and (4) exclusively credited police for homicide rate …

The Enduring Neighborhood Effect, Everyday Urban Mobility, And Violence In Chicago, Robert J. Sampson, Brian L. Levy

University of Chicago Law Review

A longstanding tradition of research linking neighborhood disadvantage to higher rates of violence is based on the characteristics of where people reside. This Essay argues that we need to look beyond residential neighborhoods to consider flows of movement throughout the wider metropolis. Our basic premise is that a neighborhood’s well-being depends not only on its own socioeconomic conditions but also on the conditions of neighborhoods that its residents visit and are visited by—connections that form through networks of everyday urban mobility. Based on the analysis of large-scale urban-mobility data, we find that while residents of both advantaged and disadvantaged neighborhoods …

Neighborhood Inequality And Violence In Chicago, 1965–2020, Patrick Sharkey, Alisabeth Marsteller

University of Chicago Law Review

This Essay analyzes trends in violence from a spatial perspective, focusing on how changes in the murder rate are experienced by communities and groups of residents within the city of Chicago. The Essay argues that a spatial perspective is essential to understanding the causes and consequences of violence in the United States and begins by describing the social policies and theoretical mechanisms that explain the connection between concentrated disadvantage and violent crime.

The analysis expands on a long tradition of research in Chicago, and it studies the distribution of violence in the city’s neighborhoods from 1965 to 2020. It additionally …

Symposium Introduction: This Violent City? Urban Violence In Chicago And Beyond, Aziz Z. Huq, John Rappaport

University of Chicago Law Review

To many, the city of Chicago conjures up a specter of unremitting urban violence. In 2014, the city was labeled the “murder capital” of the United States.¹ The following year, a video of the police shooting Laquan McDonald became a cynosure of public concern.² Commentators as disparate as Spike Lee and President Donald Trump agree: Chicago is uniquely bloody.³ Predictably, the empirical data about Chicago’s crime and policing trends belie the most dramatic of these claims.⁴ Yet if Chicago is not as violent as either Lee or Trump makes it out to be, the city’s experience …

Identifying And Measuring Excessive And Discriminatory Policing, Alex Chohlas-Wood,, Marissa Gerchick, Sharad Goel, Aziz Z. Huq, Amy Shoemaker, Ravi Shroff, Keniel Yao

University of Chicago Law Review

We describe and apply three empirical approaches to identify superfluous police activity, unjustified racially disparate impacts, and limits to regulatory interventions. First, using cost-benefit analysis, we show that traffic and pedestrian stops in Nashville and New York City disproportionately impacted communities of color without achieving their stated public-safety goals. Second, we address a long-standing problem in discrimination research by presenting an empirical approach for identifying “similarly situated” individuals and, in so doing, quantify potentially unjustified disparities in stop policies in New York City and Chicago. Finally, taking a holistic view of police contact in Chicago and Philadelphia, we show that …

Racially Territorial Policing In Black Neighborhoods, Elise C. Boddie

University of Chicago Law Review

This Essay explores police practices that marginalize Black people by limiting their freedom of movement across the spaces of Black neighborhoods. In an earlier article, I theorized “racial territoriality” as a form of discrimination that “excludes people of color from—or marginalizes them within—racialized White spaces that have a racially exclusive history, practice, and/or reputation.” In this Essay, I consider how my theory of racial territoriality could apply to policing. It offers an ac-count of how police not only criminalize Black people but also criminalize Black spaces, ostensibly justifying them—and the people who live in or frequent them—as “natural” targets for …

Textual Rules In Criminal Statutes, Joshua Kleinfeld

University of Chicago Law Review

No abstract provided.

Tribe’S Trajectory & Lgbtq Rights, Joshua Matz

University of Chicago Law Review

I’m not sure I’ll ever live it down. I actually said—out loud, to his face, a full ten minutes into our very first conversation—“Holy smokes, you’re Larry Tribe!” I was in Cambridge that day as a newly admitted student. Somehow, inexplicably (it’s not that big of a campus), I got lost. Very lost. Fortunately, a passerby professor took mercy and steered me to his office. In a bid to regain my composure, and to seem like a plausible future law student, I jumped straight to explaining why I was there: I wanted to be a civil rights lawyer. To prove …

Jeffrey Rachlinski: Man, Myth, Legend, Gregory S. Parks

University of Chicago Law Review

No abstract provided.

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

University of Chicago Law Review

No abstract provided.

On Prisoners, Politics, And The Administration Of Criminal Justice: Professor Rachel Barkow, Sonja B. Starr

University of Chicago Law Review

Professor Rachel Barkow has established herself as an indispensable voice in public and academic discourse on criminal justice reform. Beyond the very important contributions to the world of scholarship that earned her a well-deserved place in this “most-cited” list, she has also shaped policy directly (most notably as a member of the U.S. Sentencing Commission from 2013 to 2018), as well as influenced the education of countless law students through her coauthorship of the leading criminal law casebook.1 She is also an expert on administrative law and on the separation of powers, and this shapes her distinct perspective on the …

Asymmetric Subsidies And The Bail Crisis, John F. Duffy, Richard M. Hynes

University of Chicago Law Review

When individuals are arrested or indicted for a crime, governments have legitimate interests in assuring that those individuals show up for future legal proceedings and also do not cause more social harm in the meanwhile. To serve those legitimate interests, governments may restrain the personal liberty of those presumptively innocent individuals—traditionally accomplished either by incarceration or by release subject to certain sureties and conditions. The choice, in short, is between jail and bail.

Currently, governments skew that choice by subsidizing the costs of jail but not bail. The result—wholly predictable given the size and asymmetric nature of the subsidy—is that …

It’S All About (Re)Location: Interpreting The Federal Sentencing Enhancement For Relocating A Fraudulent Scheme, Stephen Ferro

University of Chicago Law Review

Section 2B1.1(b)(10) of the U.S. Sentencing Guidelines Manual increases the recommended sentencing ranges for defendants who make fraudulent schemes harder to uncover. In particular, subsection (A) of this Guideline—the relocation enhancement—increases a defendant’s recommended sentence if she “relocated, or participated in relocating, a fraudulent scheme to another jurisdiction to evade law enforcement or regulatory officials.” This provision raises the question: Where is a fraudulent scheme located? The question might have a straightforward answer in cases that involve few defendants and few fraudulent acts. But federal circuit courts have split over how to apply this enhancement to schemes that span multiple …

Defining Forced Labor: The Legal Battle To Protect Detained Immigrants From Private Exploitation, Samantha Sherman

University of Chicago Law Review

Privately run immigration detention facilities allegedly profit from a nation-wide system of forced labor. People detained in these for-profit facilities allege that they are compelled to work—often without pay—under threats of solitary confinement, deprivation of basic necessities, and other serious harms. Advocates have challenged these human rights abuses through a series of class action lawsuits under the Trafficking Victims Protection Act (TVPA). The TVPA’s forced labor provision, codified at 18 U.S.C. § 1589, prohibits the use of “labor or services” obtained by force or coercion. If successful, these lawsuits would not only help vindicate the rights of the hundreds of …

Vindicating The Right To Be Heard: Due Process Safeguards Against Government Interference In The Clemency Process, Jay Clayton

University of Chicago Law Review

No abstract provided.

Competing Algorithms For Law: Sentencing, Admissions, And Employment, Saul Levmore, Frank Fagan

University of Chicago Law Review

Algorithms have found their way into courtrooms, college admission committees, and human resource departments. While defendants and other disappointed parties have challenged the use of algorithms on the basis of due process or similar objections, it should be expected that they will also challenge their accuracy and attempt to present algorithms of their own in order to contest the decisions of judges and other authorities. The problem with this approach is that people who can transparently see why they have been algorithmically denied rights or resources can manipulate an algorithm by retrofitting data. Demands for full algorithmic transparency by policy …

California’S Proposition 47 And Effectuating State Laws In Federal Sentencing, Brenna Ledvora

University of Chicago Law Review

Proposition 47 is a California voter initiative that reduced possessory drug offenses and minor thefts from felonies to misdemeanors. The law allows individuals to retroactively reclassify their convictions and mandates that these convictions shall be considered misdemeanors “for all purposes.” Under California law, reclassified convictions cannot be predicate felonies for future state sentencing enhancements. However, federal courts have held that reclassified convictions still constitute prior convictions for federal sentencing enhancements. Thus, these convictions still trigger felony-based enhancements. This Comment argues that this result is not mandated by Supreme Court precedent and that it conflicts with California’s intent to ameliorate the …

An Institution “At Arm’S Length”: Reconsidering Supervisory Power Over The Federal Grand Jury, Rebecca Gonzalez-Rivas

University of Chicago Law Review

Grand jury proceedings are shrouded in secrecy. No judge presides over them, no reporter annotates them, and when they have concluded, no juror may speak about them. While secrecy serves many important functions for the grand jury, its veil may be lifted under certain circumstances. Grand jury records may be released if they fall under a disclosure exception laid out in Federal Rule of Criminal Procedure 6(e). While some courts limit release to the exceptions laid out in the Rule, others look to an alternative source of authority.

Several courts of appeals have held that district court judges may exercise …

Available, Granted, Revoked: A New Framework For Assessing Unauthorized Access Under The Computer Fraud And Abuse Act, Samuel Kane

University of Chicago Law Review

The Computer Fraud and Abuse Act (CFAA) criminalizes a broad range of conduct related to the compromise of computer systems. Specifically, the CFAA prohibits unauthorized access to computer systems, defining such access as that which occurs “without authorization” or in a manner that “exceeds authorized access.” Courts interpreting the meaning of unauthorized access under the CFAA have diverged into two camps. On one side, proponents of the broad approach argue that the CFAA unauthorized access inquiry should focus on access purpose, assessing whether a given access was conducted for a purpose authorized by the computer owner. On the other side, …

Penalty Default Rules For Digital Searches: Why Courts Should Spur Legislative Action Via Second-Order Regulation, Meghan Holloway

University of Chicago Law Review

We live in a data-rich age. But Fourth Amendment doctrines have failed to adapt to our current reality. Legal principles that evolved to cabin the scope of physical searches seldom constrain searches of digital devices. As a result, a warrant to search a digital device gives police officers unfettered access to all of our information. While many scholars have argued that courts should address this problem by adopting rules that directly limit the scope of digital searches, this Comment argues that some courts have already eschewed this approach in favor of rules that encourage legislatures to regulate digital searches. Legislative …

Some Doubts About “Democratizing” Criminal Justice, John Rappaport

University of Chicago Law Review

The American criminal justice system’s ills are by now so familiar as scarcely to bear repeating: unprecedented levels of incarceration, doled out disproportionately across racial groups,and police that seem to antagonize and hurt the now-distrustful communities they are tasked to serve and protect. Systemic social ailments like these seldom permit straightforward diagnoses, let alone simple cures. In this case, however, a large, diverse, and influential group of experts—the legal academy’s “democratizers”—all identify the same disease: the retreat of local democratic control in favor of a bureaucratic “machinery” disconnected from public values and the people themselves. Neighborhood juries, for example, internalize …

Exculpatory Evidence Pre-Plea Without Extending Brady, Brian Sanders

University of Chicago Law Review

Innocent defendants sometimes plead guilty. This is a problem. Some suggest fixing this problem with a constitutional requirement that prosecutors disclose exculpatory evidence before a defendant pleads guilty. A circuit split has thus developed concerning whether Brady, which requires disclosure of exculpatory evidence, extends to the pre-plea context. The Supreme Court’s jurisprudence, however, likely bars a constitutional requirement for pre-plea disclosure of exculpatory evidence. Faced with this exigency, this Comment argues that contract law should form the legal basis for pre-plea disclosure. Specifically, the contract doctrine of constructive fraud provides a suitable remedy. While big boy clauses, which defeat constructive …

Front Matter / Editorial Information

University of Chicago Law Review

No abstract provided.

Federal Expansion And The Decay Of State Courts, Diego Zambrano

University of Chicago Law Review

At the turn of the twenty-first century, the country entered its third era of judicial federalism. That era is defined by federal judicial expansion into areas of statecourt power and federal monopolization of large and complex litigation. These changes, in turn, have coincided with the decay of state courts. Whether measured by funding, delays, or docket loads, state courts—the true workhorses of the American legal system—have declined relative to federal courts. Indeed, over the last decade, state chief justices have complained that state courts are “financially bankrupt,” “at ‘the tipping point of dysfunction,’” and “on the edge of an abyss.” …

Front Matter / Editorial Information

University of Chicago Law Review

No abstract provided.

Settlement Malpractice, Michael Moffitt

University of Chicago Law Review

Lawyers routinely settle lawsuits or advise their clients about settlement. One might expect, therefore, that clients routinely complain about some aspect of their lawyers’ settlement services. Ten years of data from eleven jurisdictions paint a vivid, different picture: although the vast majority of civil lawsuits are resolved through negotiated settlements and although complaints against lawyers are common, fewer than 1 percent of reported legal malpractice cases and only about 1.5 percent of bar complaints relate in any way to lawyers’ settlement-related conduct or advice. Even in those instances when clients do raise such complaints, clients rarely prevail. In short, even …

Contents / Editorial Information

University of Chicago Law Review

No abstract provided.

Remedies For Robots, Mark A. Lemley, Bryan Casey

University of Chicago Law Review

What happens when artificially intelligent robots misbehave? The question is not just hypothetical. As robotics and artificial intelligence systems increasingly integrate into our society, they will do bad things. We seek to explore what remedies the law can and should provide once a robot has caused harm.

Remedies are sometimes designed to make plaintiffs whole by restoring them to the condition they would have been in “but for” the wrong. But they can also contain elements of moral judgment, punishment, and deterrence. In other instances, the law may order defendants to do (or stop doing) something unlawful or harmful.

Each …

Categorically Redeeming Graham V Florida And Miller V Alabama: Why The Eighth Amendment Guarantees All Juvenile Defendants A Constitutional Right To A Parole Hearing, Parag Dharmavarapu

University of Chicago Law Review

The Supreme Court has held that life without parole is an unconstitutional sentence for nearly all juvenile defendants—except for a select few that the criminal justice system deems irredeemable. Though this represents a positive development in the Court’s juvenile sentencing jurisprudence, it has left the case law deeply unsettled. For instance, the Court has held that redeemable juveniles are all entitled to a “meaningful opportunity to obtain release,” but it has failed to explicitly define what that constitutional mandate means in practice. On top of that, the Court has concluded that not even expert psychologists can determine at sentencing whether …