Digital Commons Network^™

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 …

The Public Right To Education, Matthew Patrick Shaw

University of Chicago Law Review

Public education is “the most important function of state and local government” and yet not a “fundamental right or liberty.” This Article engages one of constitutional law’s most intractable problems by introducing “the public right to education” as a doctrinal pathway to a constitutional right to education process in three steps. First, it identifies that the otherwise right-to-education foreclosing case, San Antonio Independent School District v. Rodriguez, only contemplated education as a fundamental right or liberty interest. Second, by identifying public education as a due process–protected property interest, this Article presents a viable pathway for circumventing Rodriguez. Third, mindful of …

An Information-Production Theory Of Liability Rules, Jacob Assaf, Roy Shapira

University of Chicago Law Review

The negligence-versus–strict liability debate is over in tort law, and negligence has clearly won. Yet the fact that our accident-compensation system is fault based continues to attract much opposition in popular sentiment and academic circles. Standard economic analysis views strict liability as preferable to negligence because it is easier to administer and leads to better risk reduction: strict liability induces injurers not only to optimally invest in precaution but also to optimally adjust their activity levels. Standard analysis thus views the prevalence of negligence as unjustifiable on efficiency grounds. This Article challenges the conventional wisdom and clarifies an efficiency rationale …

Contractual Evolution, Matthew Jennejohn, Julian Nyarko, Eric L. Talley

University of Chicago Law Review

Conventional wisdom portrays contracts as static distillations of parties’ shared intent at some discrete point in time. In reality, however, contract terms evolve in response to their environments, including new laws, legal interpretations, and economic shocks. While several legal scholars have offered stylized accounts of this evolutionary process, we still lack a coherent, general theory that broadly captures the dynamics of real-world contracting practice. This paper advances such a theory, in which the evolution of contract terms is a byproduct of several key features, including efficiency concerns, information, and sequential learning by attorneys who negotiate several deals over time. Each …

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 …

The Exception To Rule 12(D): Incorporation By Reference Of Matters Outside The Pleadings, Laura Geary

University of Chicago Law Review

Defendants frequently attach supporting materials to Rule 12(b)(6) motions to dismiss for failure to state a claim. The plain text of Federal Rule of Civil Procedure 12(d) dictates that judges must either exclude this material or treat the motion as one for summary judgment. However, a substantial exception has emerged that threatens to swallow the rule. The exception, called incorporation by reference, permits the consideration of outside materials when they are either referenced in the pleadings, central to the claim, or sometimes both. Courts have defined these elements differently and have diverged in their understandings of the doctrine. Incorporation by …

In Need Of Better Material: A New Approach To Implementation Challenges Under The Idea, Annie Kors

University of Chicago Law Review

The Individuals with Disabilities Education Act (IDEA) provides a substantive guarantee to a “free appropriate public education” (FAPE) to students with disabilities. The education is to be provided “in conformity with” an “individualized education program” (IEP): an educational plan for the student that is created through a statutorily defined process. Scholars and courts have focused tremendous attention on the level of educational quality that an IEP must offer to meet the IDEA’s requirements. But the creation of an adequate plan is, of course, not the end of the story; the school district then has to implement the plan. This leaves …

The Constitutionality Of Orthodoxy: First Amendment Implications Of Laws Restricting Critical Race Theory In Public Schools, Dylan Salzman

University of Chicago Law Review

The past two years have seen a proliferation of state laws that restrict how race may be discussed in public schools. Among other topics, these laws commonly ban presentation of the viewpoint that the U.S. government—or legal system—is racist. But such policies raise important First Amendment questions: while it is well accepted that school boards and state legislatures retain great discretion to promulgate curricula, the exact scope of that authority is unclear. The Supreme Court case most closely related to this question, Hazelwood School District v. Kuhlmeier, addresses only when school districts may permissibly regulate student speech in curricular contexts. …

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.

Barbed Wire Fences: The Structural Violence Of Education Law, Latoya Baldwin Clark

University of Chicago Law Review

In this Essay, I argue that, in urban metros like Chicago, poor Black children are victims of not just gun violence but also the structural violence of systemic educational stratification. Structural violence occurs in the context of domination, where poor Black children are marginalized and isolated, vulnerable to lifelong sub-ordination across many domains. Specifically, I argue that U.S. education policy subjects poor Black children to the violence of intergenerational subordination by trapping children behind residential barbed wire fences, starving their schools of necessary resources, and abusively dangling powerless community control.

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 …

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 …

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 …

Cities, Preemption, And The Statutory Second Amendment, Joseph Blocher

University of Chicago Law Review

Although the Second Amendment tends to dominate the discussion about legal limits on gun regulation, nothing has done more to shape the state of urban gun law than state preemption laws, which fully or partially limit cities’ ability to regulate guns at the local level. The goals of this short Essay are to shed light on this “Statutory Second Amendment” and to provide a basic framework for evaluating it.

The Power Of Attorneys: Addressing The Equal Protection Challenge To Merit-Based Judicial Selection, Zachary Reger

University of Chicago Law Review

Many states use merit-based judicial selection to limit political influence on state courts. Under merit selection, an independent, nonpartisan commission screens candidates for any open judgeship, sending a slate of finalists to the governor. Because the governor may appoint only from these approved finalists, merit selection constrains the ability of political officials to stack the courts with partisan judges.

Yet not all are convinced of merit selection’s merit. Critics of merit selection have assailed the role attorneys play in selecting some of the commission’s members. Though the details vary by state, ordinarily a minority of commissioners must be attorneys, and …

Civil Procedure As The Regulation Of Externalities: Toward A New Theory Of Civil Litigation, Ronen Avraham, William H.J. Hubbard

University of Chicago Law Review

Civil procedure serves a multitude of goals, from regulating the cost of fact gathering to dictating the rules of advocacy in court to promoting public participation in trials. To what extent can procedural design serve them all, or must rules sacrifice some interests to serve others? In this Article, we are the first to introduce a theory of procedural design that answers this question. We build upon the fundamental insight that the goals of civil procedure, as varied as they are, all occupy a common conceptual space—each addresses an externality, positive or negative, that litigation creates. This insight allows us …

Remembering: The Constitution And Federally Funded Apartheid, Joy Milligan

University of Chicago Law Review

For much of the twentieth century, the U.S. government authorized and invested heavily in segregation and racial inequality. Often it did so through federal programs authorized under Congress’s Spending Clause powers. Federal spending allowed powerful national investments in areas like health, education, and housing but frequently created segregated hospitals, schools, and communities. From the New Deal onward, Black leaders pressed constitutional arguments to hold the federal government responsible for its role in deepening racial inequality. Early on, federal lawyers and administrators recognized the strength of those arguments but explicitly decided against halting federal involvement in Jim Crow.

Decades later, the …

Foreign Dictators In U.S. Court, Diego A. Zambrano

University of Chicago Law Review

It’s almost impossible to sue a foreign government in U.S. courts. The Foreign Sovereign Immunities Act, the court-created “act of state” doctrine, and other common- law immunities shield foreign officials and governments from most lawsuits. For instance, courts have dismissed claims against China, Cuba, Venezuela, and Russia over allegations of torture, detentions, and election interference. Yet foreign governments have unfettered access to U.S. courts as plaintiffs. And foreign dictatorships— including Russia, China, Turkey, and Venezuela—have leveraged this access to harass political dissidents, critics, and even newspapers in the United States. These doctrines create an asymmetry at the heart of this …

Intellectual Property Norms In American Theater, Kelly Gregg

University of Chicago Law Review

When a musical opens on Broadway, what aspects of the production are covered by copyright’s protection of “dramatic works”? The script clearly is (although policing infringement is nigh impossible), but courts have yet to address whether the work of the director or designers should be afforded copyright protections. Nonetheless, within the close-knit professional New York theater community, rarely do artists significantly copy the work of others. This Comment argues that this is because the community has developed its own welfare-maximizing norms to address intellectual property. However, looking at larger cross-sections of American theater (such as all professional theaters independent of …

Textual Rules In Criminal Statutes, Joshua Kleinfeld

University of Chicago Law Review

No abstract provided.

Write Like You’Re Running Out Of Time: Prepublication Review, Retroactive Classification, And Intermediate Scrutiny, Henry Walter

University of Chicago Law Review

The Constitution’s promises of freedom of speech and common defense can, at times, be at odds. One acute example of that tension is the prepublication review process, by which the government reviews written works by certain current and former employees to ensure that they do not contain classified or other sensitive information. While this process surely has its merits in preserving national security, it also presents authors with a bureaucratic thicket that is often difficult to navigate. This process is further complicated by the fact that the government can retroactively classify documents, meaning that information that authors might have thought …

Can Procedure Take?: The Judicial Takings Doctrine And Court Procedure, Rebecca Hansen

University of Chicago Law Review

In considering the value of the judicial takings doctrine, this Comment argues that we should look to a new area of law: procedure. Courts often have the authority to set procedure, and they use this authority for substantive ends. This Comment argues that applying the Takings Clause to procedure demonstrates the value of the judicial takings doctrine. It argues that the Takings Clause, rather than the Due Process Clause, is the appropriate framework for certain forms of procedure. Under the Takings Clause, we can recognize the judiciary’s authority to use procedure for substantive ends while also offering “just compensation” to …

A Place Worth Protecting: Rethinking Cost-Benefit Analysis Under Fema’S Flood-Mitigation Programs, Kelly Mcgee

University of Chicago Law Review

As climate change threatens coastal areas with more frequent and intense flooding, the federal government has adopted a greater focus on mitigating the effects of natural disasters. While neighborhoods differ in terms of physical risk exposure, they also differ in social vulnerability—the characteristics that influence a community’s ability to safely weather a storm, withstand disruptions to employment and housing, navigate the rebuilding process, and eventually return to normal. Funding for federal flood-mitigation projects administered by the Federal Emergency Management Agency (FEMA) is currently distributed according to a simple metric—the benefits of a project must outweigh its costs. FEMA’s approach to …

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 …

The Most-Cited Legal Scholars Revisited, Fred R. Shapiro

University of Chicago Law Review

This Essay presents a list of the fifty most-cited legal scholars of all time, in-tending to spotlight individuals who have had a very notable impact on legal thought and institutions. Because citation counting favors scholars who have had long careers, I supplement the main listing with a ranking of the most-cited younger legal scholars. In addition, I include five specialized lists: most-cited international law scholars, most-cited corporate law scholars, most-cited scholars of critical race theory and feminist jurisprudence, most-cited public law scholars, and most-cited scholars of law and social science. (For those readers who cannot wait to see the actual …

Lucian Bebchuk And The Study Of Corporate Governance, Kobi Kastiel

University of Chicago Law Review

It is with great pleasure that I write this Essay about Lucian Bebchuk, the James Barr Ames Professor of Law, Economics, and Finance at Harvard Law School. Bebchuk has made fundamental, influential, and lasting contributions to the field of corporate governance and has mentored an exceptional number of corporate scholars. He has also been my own mentor and main doctoral supervisor, and the ten years that I have worked with him as a student, fellow, and coauthor have been an incomparable learning experience. This Essay provides a brief account of Bebchuk’s pro-found contributions to the field of corporate governance and …

The Scholar As Coauthor, Jonathan S. Masur

University of Chicago Law Review

No abstract provided.