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Contents / Editorial Information

University of Chicago Law Review

No abstract provided.

Criminal Law In A Civil Guise: The Evolution Of Family Courts And Support Laws, Elizabeth D. Katz

University of Chicago Law Review

Each year family courts incarcerate thousands of Americans for nonpayment of child support. The vast majority of these parents are not accorded criminal procedure protections because courts have characterized routine child support enforcement as a “civil” matter. The United States Supreme Court has endorsed this approach. In Turner v Rogers, the Court began from a premise it regarded as both legally significant and unquestionably true: that child support proceedings are civil On that basis, the Court determined that an indigent father facing a year in jail was not entitled to a public defender. The Court’s analysis reflects a broader and …

Judge Posner’S Reconstruction Of Property Theory, Rachel E. Sachs

University of Chicago Law Review

No abstract provided.

Dismissing Decisional Independence Suits, Jennifer Nou

University of Chicago Law Review

No abstract provided.

Posner And Class Actions, Daniel Klerman

University of Chicago Law Review

No abstract provided.

Foreword, Lawrence Lessig

University of Chicago Law Review

No abstract provided.

Posner’S Unlikely Patent Intervention, Jonathan Masur

University of Chicago Law Review

No abstract provided.

On Posner On Copyright, Tim Wu

University of Chicago Law Review

No abstract provided.

Richard Posner, The Decline Of The Common Law, And The Negligence Principle, Saul Levmore

University of Chicago Law Review

No abstract provided.

Posner’S Pragmatic Justiciability Jurisprudence: The Triumph Of Possibility Over Probability, Eugene Kontorovich

University of Chicago Law Review

No abstract provided.

Judges And Judgment: In Praise Of Instigators, Kathryn Judge

University of Chicago Law Review

No abstract provided.

Entire Issue

University of Chicago Law Review

No abstract provided.

Enacted Legislative Findings And Purposes, Jarrod Shobe

University of Chicago Law Review

Statutory interpretation scholarship generally imagines a sharp divide between statutory text and legislative history. This Article shows that scholars have failed to consider the implications of a hybrid type of text that is enacted by Congress and signed by the president, but which looks like legislative history. This text commonly appears at the beginning of a bill under headings such as “Findings” and “Purposes.” This enacted text often provides a detailed rationale for legislation and sets out Congress’s intent and purposes. Notably, it is drafted in plain language by political congressional staff rather than technical drafters, so it may be …

The Failure Of Mixed-Motives Jurisprudence, Andrew Verstein

University of Chicago Law Review

Because legal determinations often turn on motive, and motives are often complex, courts must decide what to do about mixed motives. For example, a boss might fire someone both for lawful reasons relating to job performance and also because of illegal prejudice. Increasingly, courts evaluate such cases under a “ButFor standard,” which finds for the plaintiff only if the defendant would have acted differently but for the bad motive. Put another way, the defendant loses unless the bad motive made some kind of causal difference in outcomes. While this approach is intuitive, I argue that the But-For standard is problematic. …

Testing For Trademark Dilution In Court And The Lab, Barton Beebe, Roy Germano, Christopher J. Sprigman, Joel H. Steckel

University of Chicago Law Review

Federal courts are currently split, even within particular districts, on the basic question of what a plaintiff must show to establish that a defendant’s conduct constitutes trademark dilution by blurring. Federal trademark law defines “dilution by blurring” as “association arising from the similarity between a mark or trade name and a famous mark that impairs the distinctiveness of the famous mark.” In construing this statutory language, a majority of courts have held that to establish blurring, a plaintiff need only show that consumers associate the defendant’s mark with the plaintiff’s famous mark. These courts appear to assume that to the …

Algorithmic Fair Use, Dan L. Burk

University of Chicago Law Review

Legal governance and regulation are becoming increasingly reliant on data collection and algorithmic data processing. In the area of copyright, online protection of digitized works is frequently mediated by algorithmic enforcement systems intended to purge illicit content and limit the liability of YouTube, Facebook, and other content platforms. But unauthorized content is not necessarily illicit content. Many unauthorized digital postings may claim legitimacy under statutory exceptions like the legal balancing standard known as fair use. Such exceptions exist to ameliorate the negative effects of copyright on public discourse, personal enrichment, and artistic creativity. Consequently, it may seem desirable to incorporate …

Privatizing Personalized Law, Andrew Verstein

University of Chicago Law Review

In recent years, scholars have devoted increasing attention to the prospect of personalized law. The bulk of the literature has so far concerned whether to personalize any law and, if so, what substantive changes should be instantiated through personalization. Comparatively little discussion has gone to the authorship of personalized laws. Who will make personalized laws? Who will enforce them? In this Essay, I propose we consider the who in the personalization debate. Specifically, I identify the policy considerations that bear on the optimal maker or enforcer of personalized law. To put it another way, my Essay begins where most of …

Toward The Personalization Of Copyright Law, Adi Libson, Gideon Parchomovsky

University of Chicago Law Review

In this Essay, we provide a blueprint for personalizing copyright law in order to reduce the deadweight loss that stems from its universal application to all users, including those who would not have paid for it. We demonstrate how big data can help identify inframarginal users, who would not pay for copyrighted content, and we explain how copyright liability and remedies should be modified in such cases.

Assessing The Empirical Upside Of Personalized Criminal Procedure, Matthew B. Kugler, Lior Jacob Strahilevitz

University of Chicago Law Review

Though personalization of law is often viewed as a new idea, pockets of criminal procedure already tolerate it. Many courts have held that Miranda warnings must be tailored when read to juveniles or people with limited English proficiency; a suspect’s age is necessarily part of the judicial calculus when determining whether the police’s questioning of her is a custodial interrogation; and some state courts consider a person’s demographic characteristics when deciding whether they have consented to a search. The question before us now is whether society should go further. Should the law of criminal procedure pay more attention to individual …

Neuroscience And The Personalization Of Criminal Law, Deborah W. Denno

University of Chicago Law Review

While objective standards of reasonableness permeate most legal disciplines, criminal law has trended toward personalization since the 1960s, when the Model Penal Code introduced conceptions of mental states based on Freudian psychoanalytic theory. Today, advancements in neuroscience offer previously inconceivable insights into living brain structures and damage. This Essay contends that a criminal justice system that uses personalizing neuroscientific evidence will yield better outcomes. This Essay contributes two unique tools to the personalized law debate. First are the results of my two-decade-long Neuroscience Study, in which I have compiled eight hundred criminal cases that addressed neuroscientific evidence in any capacity. …

Algorithmic Price Discrimination When Demand Is A Function Of Both Preferences And (Mis)Perceptions, Oren Bar-Gill

University of Chicago Law Review

Sellers are increasingly utilizing big data and sophisticated algorithms to price discriminate among customers. Indeed, we are approaching a world in which each consumer will be charged a personalized price for a personalized product or service. Is this type of price discrimination good or bad? The normative assessment, I argue, depends on the target of the discrimination. Sellers are interested in the consumer’s willingness to pay (WTP) for their goods or services: they maximize profits by charging a price that is as close as possible to the consumer’s WTP. This WTP is a function of consumer preferences on the one …

An Empirical Analysis Of Sexual Orientation Discrimination, J. Shahar Dillbary, Griffin Edwards

University of Chicago Law Review

This study is the first to empirically demonstrate widespread discrimination across the United States based on perceived sexual orientation, sex, and race in mortgage lending. Our analysis of over five million mortgage applications reveals that any Fair Housing Administration (FHA) loan application filed by same-sex male co-applicants is significantly less likely to be approved compared to the white heterosexual baseline (holding lending risk constant). The most likely explanation for this pattern is sexual orientation–based discrimination—despite the fact that FHA loans are the only type of loan in which discrimination on the basis of sexual orientation is prohibited.

Moreover, we find …

Book Review: The New Legal Liberalism, Emma Kaufman

University of Chicago Law Review

No abstract provided.

Comment: Pressure To Pray? Thinking Beyond The Coercion Test For Legislator-Led Prayer, Samuel Taxy

University of Chicago Law Review

The First Amendment to the Constitution commands that “Congress shall make no law respecting an establishment of religion.” This provision is now generally interpreted to forbid a slew of policies and practices at the federal, state, and local levels that endorse or enshrine religion. One flash point in the Establishment Clause doctrine is prayer and government. Whereas one line of cases suggests that prayer offered at government-sponsored events is unconstitutional if it is coercive, another instructs that prayer offered in the legislative context is generally acceptable, at least if delivered by a third party.

This Comment addresses a burgeoning circuit …

Taking Data, Michael C. Pollack

University of Chicago Law Review

Technological development has created new forms of information, altered expectations of privacy, and given law enforcement more tools to examine that information and intrude on that privacy. One crucial facet of these changes involves internet service providers (ISPs): as people expose more of their lives to their ISPs— all the websites they visit, people they communicate with, emails they send, files they store, and more—law enforcement efforts to access that data become more and more common. But scholars and policymakers alike recognize that the existing statutory frameworks governing those efforts are based on obsolete technology and strike balances that are …

How Not To Regulate, Lisa E. Heinzerling

University of Chicago Law Review

Review of: How to Regulate: A Guide for Policymakers Thomas A. Lambert. Cambridge, 2017. 256 pages.

To Move Or Not To Move? That Is The Metaphysical Question, David J. Sandefer

University of Chicago Law Review

Circuit courts are currently split on how to apply the robbery abduction enhancement contained in the United States Sentencing Guidelines. As a result of patchwork interpretations and a failure to agree on when an abduction occurs, courts have come to drastically different conclusions in almost identical cases. In order to resolve the circuit split, courts need a functional test that applies a unified definition of location.

This Comment seeks to provide courts with such a test. In proposing this test, this Comment looks to (1) the Guidelines, (2) sexual assault case law, and (3) kidnapping case law

Waiving Chevron, Jeremy D. Rozansky

University of Chicago Law Review

By according agencies the power to interpret the law, Chevron deference increases the power of administrative agencies. Yet agencies may not always want the benefits of Chevron deference. If the agency is a party in a lawsuit, it might decide not to seek Chevron deference in the hope that the court will reverse its binding policy. Following the inauguration of President Donald Trump, the Federal Communications Commission did just that in Global Tel*Link Inc v FCC, a lawsuit concerning regulations of calling services at correctional facilities. At least initially, the DC Circuit did not apply the Chevron framework because the …

The Constitutionality Of Income-Based Fines, Alec Schierenbeck

University of Chicago Law Review

In America, fines are typically imposed without regard to income. The result is a system that traps low-income offenders in a cycle of debt and jail while letting rich offenders break the law without meaningful financial consequence. One-sizefits-all fines also fail to meet basic goals of the justice system: to treat like offenders alike, punish the deserving, and encourage respect for the law. Elsewhere in the world, however, systems that assess fines based on earnings have been around for nearly one hundred years. The most common model—known as the “day fine”— scales penalties according to a person’s daily income. These …

Empirical Patterns Of Pro Se Litigation In Federal District Courts, Mitchell Levy

University of Chicago Law Review

Pro se litigants face a number of challenges when bringing civil litigation. One potential solution to these challenges, endorsed by members of the judiciary and the legal academy, is pro se reform at the trial court level: offering special services to pro se litigants in order to help them successfully navigate the legal system. This Comment offers the first publicly available empirical assessment of several pro se reform efforts thus far. The analysis shows that these pro se reforms have not succeeded in improving pro se litigants’ win rates at trial. This Comment thus suggests that, while pro se reforms …