Law Commons^™

Equality’S Understudies, Aziz Z. Huq

Public Law and Legal Theory Working Papers

Our Republic these days is riven by divides about what equality demands of us as private and public actors. Consider just a few recent examples:

• Harvard University is challenged in federal court for preferring African-Americans over other racial minorities, especially Asian-Americans, in their admissions pool^.1 Harvard’s flagship law review, meanwhile, faces its own suit over its preferment of minority candidates.²

• Virginia’s Governor Ralph Northam and its Attorney General Mark Herring are swept up into political controversy by news that both dressed in ‘blackface’ during their college or medical school days.³ The historical significance of ‘blackface’ …

Imputing Unreported Hate Crimes Using Google Search Data, Dhammika Dharmapala, Aziz Huq

Public Law and Legal Theory Working Papers

U.S. law requires the Attorney General to collect data hate crime victimization from states and municipalities. But states and localities are under no obligation to cooperate. Data production hence varies considerably across jurisdictions. This Article addresses the ensuing “missing data” problem by imputing unreported hate crimes using Google search rates for racial epithets. As a benchmark, it uses two alternative definitions of which jurisdictions more effectively collect hate crime data: all states that were not part of the erstwhile Confederacy, and states with statutory provisions relating to hate crime reporting. We regress hate crime rates for racially-motivated hate crimes with …

A Right To A Human Decision, Aziz Z. Huq

Public Law and Legal Theory Working Papers

Recent advances in computational technologies have spurred anxiety about a shift of power from human to machine decision-makers. From prison sentences to loan approvals to college applications, corporate and state actors increasingly lean on machine learning tools (a subset of artificial intelligence) to allocate goods and to assign coercion. Machine-learning tools are perceived to be eclipsing, even extinguishing, human agency in ways that sacrifice important individual interests. An emerging legal response to such worries is a right to a human decision. European law has already embraced the idea in the General Data Protection Regulation. American law, especially in the criminal …

Democracy As Failure, Aziz Z. Huq

Public Law and Legal Theory Working Papers

The theory and the practice of democracy alike are entangled with the prospect of failure. This is so in the sense that a failure of one kind or another is almost always to be found at democracy’s inception. Further, different kinds of shortfalls dog its implementation. No escape is found in theory, which precipitates internal contradictions that can only be resolved by compromising important democratic values. Out of localized failure, indeed, comes wholesale breakdown. A stable democratic equilibrium proves elusive because of the tendency of discrete lapses to catalyze wider, systemically disruption. Worse, the very pervasiveness of local failure also …

A Tactical Separation Of Powers Doctrine, Aziz Z. Huq

Public Law and Legal Theory Working Papers

No abstract provided.

State Standing’S Uncertain Stakes, Aziz Z. Huq

Public Law and Legal Theory Working Papers

Whether states have Article III standing is a question that has in recent years induced a puzzling and nonstandard patterning of votes amongst the Justices of the Supreme Court. It is, of course, not uncommon for that bench to be characterized by sharp ideological divides. What is unusual and symptomatic in the state standing litigation context is rather this: Specific Justices seem to adopt divergent, seemingly inconsistent, positions on the same basic question of constitutional law when it is presented in different litigation matters.¹ When it comes to state standing, the Court’s ideological divide is not merely acute but …

The Impact Of Artificial Intelligence On Rules, Standards, And Judicial Discretion, Frank Fagan, Saul Levmore

Public Law and Legal Theory Working Papers

Artificial intelligence (AI), and machine learning in particular, promises lawmakers greater specificity and fewer errors. Algorithmic lawmaking and judging will leverage models built from large stores of data that permit the creation and application of finely tuned rules. AI is therefore regarded as something that will bring about a movement from standards to rules. Drawing on contemporary data science, this Article shows that machine learning is less impressive when the past is unlike the future, as it is whenever new variables appear over time. In the absence of regularities, machine learning loses its advantage and, as a result, looser standards …

Civil Servant Disobedience, Jennifer Nou

Public Law and Legal Theory Working Papers

Administrative agencies are hierarchical bureaucracies. But those on the lower rungs don’t always fall lockstep in line with those at the top. Reasons vary. Sometimes, intra-agency communication is poor. Those laboring below may not know the preferences of their superiors. Even when this information is available, sometimes bureaucrats are lazy; they can “shirk.” Or they may simply disagree with what their bosses want; they might “drift.” Each of these themes have been mainstays of principal-agent models across various disciplines.¹ Legal scholars too have studied bureaucratic resistance, mainly of civil servants within the executive branch.² These analyses have mostly …

The Unconstitutionality Of Justice Black, William Baude

Public Law and Legal Theory Working Papers

In Ex Parte Levitt, the Supreme Court denied standing to a pro se litigant making esoteric claims against the appointment of Justice Hugo Black. The Court’s short opinion is now an unremarkable mainstay of modern federal courts doctrine. But the case merits closer examination. Indeed, Levitt’s challenge was probably meritorious, and Hugo Black’s appointment unconstitutional. Moreover, the Court’s standing analysis was probably wrong – though there might have been other reasons to deny the challenge. And finally, the case’s aftermath raises intriguing questions about the Supreme Court’s role in politics and constitutional law. But don’t worry – his opinions are …

Abortion, The Disabilities Of Pregnancy, And The Dignity Of Risk, Mary Anne Case

Public Law and Legal Theory Working Papers

When abortion is discussed in the context of destigmatizing disability, it is usually in connection with the potential disabilities of the fetus. Disability rights activists increasingly encourage both lawmakers setting abortion policy and women contemplating abortion to think that a life with disabilities is worth living. In particular, they argue that a fetus diagnosed with Down syndrome, let alone one with a cleft palate, should not for that reason be aborted.While taking this line of argument into account, this Chapter will shift the frame of reference to various ways in which the law and bioethics of abortion treat pregnant women …

Tort Liability And The Risk Of Discriminatory Government, Ehud Guttel, Ariel Porat

Public Law and Legal Theory Working Papers

When individuals and firms fail to invest in adequate care, the government often steps in, taking costly measures to restore safety or mitigate harm. Under such circumstances, a question arises as to whether the government can demand recovery for its costs. For many years, the answer has been negative; tort law has persistently refused to render negligent individuals and firms liable for governmental expenditures. Yet recently, the law changed markedly. Recognizing that the no-liability regime subsidizes faulty behavior, an increasing number of jurisdictions have established the right of public entities to sue for reimbursement of costs. Against this backdrop, this …

Property Beyond Exclusion, Lee Anne Fennell

Public Law and Legal Theory Working Papers

Property rights have long been associated with a simple and distinctive technology: exclusion. But technologies can become outdated as conditions change, and exclusion is no exception. Recent decades have featured profound changes that have made exclusion a less useful, less necessary, and more expensive way of regulating access to resources. This Article surveys the prospects for a post-exclusion understanding of real and personal property. It proceeds from the premise that property is built upon complementarities, the nature and scale of which have undergone seismic shifts. Physical boundaries and lengthy claims on resources are designed to group complementary elements together in …

Free Speech And Cheap Talk, Daniel Hemel, Ariel Porat

Public Law and Legal Theory Working Papers

We present a new framework for analyzing defamation liability that serves both to clarify and complicate understandings of the law’s consequences for speakers, victims, and the marketplace of ideas. In addition to the familiar deterrence and chilling effects, we show how defamation liability can generate a “warming effect,” making statements more credible and potentially raising both the quality and quantity of speech. We also explain how a more plaintiff-friendly liability regime may exacerbate harms to defamation victims. We end by considering the possibility of “self-tailored” defamation law, with victims or speakers selecting the defamation liability regime that applies to them.

Tangled Up In Tax, Daniel J. Hemel

Public Law and Legal Theory Working Papers

No abstract provided.

The Architecture Of A Basic Income, Miranda Perry Fleischer, Daniel Hemel

Public Law and Legal Theory Working Papers

The notion of a universal basic income (UBI) has captivated academics, entrepreneurs, policymakers, and ordinary citizens in recent months. Pilot studies of a UBI are underway or in the works on three continents. And prominent voices from across the ideological spectrum have expressed support for a UBI or one of its variants, including libertarian Charles Murray, Facebook cofounder Chris Hughes, labor leader Andy Stern, and—most recently—former President Barack Obama. Although even the most optimistic advocates for a UBI will acknowledge that nationwide implementation lies years away, the design of a basic income will require sustained scholarly attention. This Article seeks …

Book Review: The New Legal Liberalism, Emma Kaufman

University of Chicago Law Review

No abstract provided.

On Posner On Copyright, Tim Wu

University of Chicago Law Review

No abstract provided.

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 On Tax: The Independent Investor Test, Yair Listokin

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.

Posner On Vertical Restraints, C. Scott Hemphill

University of Chicago Law Review

No abstract provided.

Foreword, Lawrence Lessig

University of Chicago Law Review

No abstract provided.

Unlikely Resurrection: Richard Posner, Promissory Estoppel, And The Death Of Contract, Douglas Baird

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 …

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 …

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 …

Contents

University of Chicago Law Review

Contents and editorial information.

Posner’S Unlikely Patent Intervention, Jonathan Masur

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.