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New Issue: Volume 83.3 Is Now Live!

Check out the newest edition of The University of Chicago Law Review on our "Issues" page or by clicking here!

In Memoriam: Antonin Scalia (1936–2016)

In memory of Justice Antonin Scalia, the editors of The University of Chicago Law Review are republishing five pieces related to Scalia in an online collection. Three of these pieces were written by Scalia himself; the other pieces were written about him and in response to his writings. All of the pieces illuminate Scalia’s intellectual contributions and legal influence.

The Relative Virtues of Bottom-Up and Top-Down Theories of Fair Use

Pamela Samuelson

In the forty years since the fair use doctrine was codified, courts have grappled with fair use defenses in hundreds of cases. One of the great virtues of fair use is its flexibility, for it allows courts in a wide variety of contexts to balance the interests of copyright owners in having control over unfair exploitations of their works and the interests of follow-on creators and other users in having some freedom to make reasonable uses of copyrighted materials, some of which may have spillover benefits for the public at large. Yet, because of the fact-intensive and case-by-case nature of the common law of fair use, commentators often complain that it is unpredictable and incoherent.

83 U Chi L Rev Online 206 (2017) [Essay PDF]

A Response to Abraham Bell and Gideon Parchomovsky, The Dual-Grant Theory of Fair Use, 83 U Chi L Rev 1051 (2016) [Article PDF]

* * *

The Demands of an Interpretive Theory of Contract

Peter Benson

Professor Robin Kar’s Contract as Empowerment represents a thoughtful and ambitious effort to introduce a unified general theory of contract law that, in his words, “offers a fundamental reinterpretation of the basic principles that animate contract law” and that, on this basis, can harmonize the “central doctrinal challenges for modern contract theory.” As Kar rightly points out, contract as empowerment goes against the current of prevailing contract theories. Unlike economic approaches, it is a noninstrumentalist theory that aims to provide a reasonable interpretation of the settled principles of contract law taken on their own terms. In doing so, the theory justifies these principles on moral grounds consistent with contracts having genuine, legally obligatory (coercive) force. His conception of interpretive legal theory rejects the widely and uncritically assumed dichotomy between “descriptive” and “normative” perspectives, arguing instead that a satisfactory approach to law must be both at once. In contrast to promissory theories, contract as empowerment does not rest on or even “recommend the legal enforcement of the moral obligation to keep one’s promises.” Moreover, unlike promissory and reliance-based theories, it recognizes the centrality of the consideration require- ment and seeks to explain it. In doing so, Kar follows through on his fundamental contention that, ideally, any viable theory of contract law must have the resources to account for all of contract law’s main doctrines and principles within a unified moral framework. Finally, as opposed to distributive-justice approaches, contract as empowerment aims to justify the whole of contract law in light of a nondistributive conception of what is reasonable and fair as between the two contracting parties. Even if, as I argue, there may be difficulties with some of the answers of the proposed theory, it does make clear the sort of inquiry that is needed if, contrary to prevailing views, there is to be a sound general interpretive theory of the main doctrines of contract law. 

83 U Chi L Rev Online 190 (2017) [Essay PDF]

A Response to Robin Kar, Contract as Empowerment, 83 U Chi L Rev 759 (2016) [Article PDF]

* * *

Implicit Stereotyping as Unfair Prejudice in Evidence Law

Ted Sampsell-Jones

In her excellent new article, Professor Anna Roberts attacks existing doctrine regarding the application of Rule 609, which governs admissibility of prior convictions for impeachment. She argues that Rule 609, at least as it has been interpreted by courts, has turned into a disaster of evidence law. Resting on fictional assumptions, courts let far too many prior convictions in, especially against criminal defendants. Doing so seriously distorts the accuracy of the fact-finding process, in part by discouraging defendants from testifying. In order to remedy this problem, she proposes that courts should recognize implicit racial bias as a type of unfair prejudice under Rule 609 and therefore exclude more convictions.

Along with the existing literature on Rule 609, Roberts has demonstrated beyond peradventure that the case law is indeed a disaster. She has also added the important new insight that part of the problem with Rule 609 is the implicit racial bias that many jurors bring with them to the courtroom.

Nonetheless, I am not convinced that her proposed remedy—recognizing implicit bias as a source of unfair prejudice—is sound as a matter of evidence law. That remedy, if accepted, cannot be easily cabined to Rule 609. Roberts’s arguments, if taken to their logical conclusion, threaten to disrupt other rules as well. They also threaten to undermine some of the rough compromises that, on the whole, benefit criminal defendants of all races. In short, her arguments may prove too much.

83 U Chi L Rev Online 174 (2017) [Essay PDF]

A Response to Anna Roberts, Reclaiming the Importance of the Defendant's Testimony: Prior Conviction Impeachment and the Fight against Implicit Stereotyping, 83 U Chi L Rev 835 (2016) [Article PDF]

* * *

The Relegation of Polarization

Nicholas O. Stephanopoulos

Section 2 of the Voting Rights Act (VRA)—the crucial provision banning racial vote dilution—does not mention racial polarization in voting. Nor does polarization feature prominently in the list of factors included in the Senate report accompanying the Act; it is addressed by just one of the list’s ten or so items. Nevertheless, thanks to the Supreme Court’s epochal 1986 decision construing the Act, Thornburg v Gingles, polarization is “the undisputed and unchallenged center” of vote dilution law. It accounts, in fact, for two of Gingles’s three preconditions for liability: a “minority group must be able to show that it is politically cohesive” and also “must be able to demonstrate that the white majority votes sufficiently as a bloc.” Polarization is simply the difference between these quantities: minority support for a minority-preferred candidate minus white support for the candidate.

Despite its doctrinal centrality, polarization remains a mysterious concept, both in theory and in practice. As a theoretical matter, it is far from clear why a plaintiff must prove polarization to prevail in a vote dilution challenge. Is it because polarization reveals discrimination by white voters against minority candidates of choice? Or because the pluralist marketplace is malfunctioning—the usual deals between groups not being made—when polarization is high? Or because certain electoral policies can interact with polarization to prevent minority-preferred candidates from winning office? And as a practical matter, it is even more obscure how polarization should be established. The lower courts are sharply divided as to the elections that are relevant, the levels of minority cohesion and white bloc voting that are sufficient, the way to identify minority candidates of choice, and many other issues.

83 U Chi L Rev Online 160 (2017) [Essay PDF]

A Response to Christopher S. Elmendorf, Kevin M. Quinn, and Marisa A. Abrajano, Racially Polarized Voting, 83 U Chi L Rev 587 (2016) [Article PDF]

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Plausible Theory, Implausible Conclusions

Lonny Hoffman

Nearly a decade after the Supreme Court first undertook to heighten pleading requirements, fierce debate continues to rage over its decisions in Bell Atlantic Corp v Twombly and Ashcroft v Iqbal. Part of the debate has been doctrinal. Directed to set aside conclusory allegations, and then to decide if those remaining are plausible, trial courts struggle consistently to apply these unfamiliar steps at the pleading stage. Another part of the debate is empirical. Although researchers have studied the cases in the lower courts from many different angles, Professor William Hubbard joins a band of skeptics who believe that the quantitative evidence is still inconclusive and that a clear picture of the decisions' effects remains elusive. Starting from the aporetic premise, Hubbard says that while the legal community waits to see if the empirical research can ever provide illumination, it needs a new approach.

83 U Chi L Rev Online 143 (2016) [Essay PDF]

A Response to William H.J. Hubbard, A Fresh Look at Plausibility Pleading, 83 U Chi L Rev 693 (2016) [Article PDF]

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The Statutory Case against Off-Label Promotion

Nathan Cortez

One of the most vexing problems in drug and device regulation is “off-label” promotion--when a company markets uses for a product that have not been approved by the US Food and Drug Administration (FDA). Off-label use can range from conspicuous (prescribing a product for an unapproved medical condition or patient group) to more subtle (prescribing beyond the approved dosage, duration, or any other parameter set forth in the approved labeling). The challenge posed by off-label promotion derives from a well-established dichotomy: the FDA has jurisdiction to regulate manufacturers and the claims they make about their products, but has no jurisdiction to regulate the practice of medicine or physicians’ prescribing behavior. This dichotomy not only creates the temptation for companies to promote off-label uses, but also creates a regulatory conundrum for the FDA.

83 U Chi L Rev Online 124 (2016) [Essay PDF]

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Safety First? The Deceptive Allure of Full Reserve Banking

Morgan Ricks

In Safe Banking, Professor Adam Levitin joins a venerable tradition in the money and banking literature. That tradition, called full reserve banking, has claimed a number of illustrious supporters over the years, including Professors Irving Fisher, Henry Simons, and Milton Friedman. The basic idea of full reserve banking is seductive in its simplicity: “banks” should own nothing but physical cash. Because a full reserve bank has no investments, it can suffer no investment losses. A run on such a bank would be harmless, because the bank would never fail to meet redemptions (barring any loss or theft of cash). The process of bank money creation, familiar to any student of Economics 101, would go away. Money creation would be exclusively a government affair; “banks” would be pass-through vehicles, true depositories of currency. Our elaborate system of prudential bank regulation and supervision would be needless.

83 U Chi L Rev Online 97 (2016) [Essay PDF]

A Response to Adam J. Levitin, Safe Banking: Finance and Democracy, 83 U Chi L Rev 357 (2016) [Article PDF]

* * *

Incidental Burdens and the Nature of Judicial Review

Michael C. Dorf

Professors Joseph Blocher and Darrell Miller deserve enor­mous credit for identifying a heretofore largely unrecognized problem. They explain that common-law doctrines and general statutes that are not instances of conventional gun control can nonetheless be applied in ways that limit the freedom to own, pos­sess, and use firearms. They ask: “Does the Second Amendment apply to civil suits for trespass, negligence, and nuisance? Does the Amendment cover gun-neutral laws of general applicability like assault and disturbing the peace?” More broadly, should the application of such doctrines and laws trigger Second Amendment scrutiny? Blocher and Miller offer a framework for thinking about an important set of unresolved questions.

This Essay has three goals of its own. Part I is a compliment disguised as a quibble. In responding to Blocher and Miller’s char­acterization of my own analysis of incidental burdens, I note that their article is an important contribution to the literature on the Second Amendment as a whole, not just incidental burdens thereon. Part II notes an important distinction between other rights that might be incidentally burdened by general laws—es­pecially speech, religion, and equal protection—and the Second Amendment right to own, possess, and use firearms. Each of the former has a strong equality component. That difference might lead one to conclude that direct burdens on these other rights ought to trigger greater scrutiny than direct burdens on Second Amendment rights. Part III explains how Blocher and Miller have identified what ought to be, but is not yet, a central concern of jurisprudence: when and how to pick out a particular legal ob­ligation from the entire legal corpus and call that particular ob­ligation a distinct law.

83 U Chi L Rev Online 97 (2016) [Essay PDF]

A Response to Joseph Blocher and Darrell A.H. Miller, What Is Gun Control? Direct Burdens, Incidental Burdens, and the Boundaries of the Second Amendment, 83 U Chi L Rev 295 (2016) [Article PDF]

The University of Chicago Law Review Online


Presidential Politics and the 113th Justice


   Amy Howe
   83 U Chi L Rev Online 1

The West Wing, the Senate, and "The Supremes" (Redux)

   Lisa McElroy
   83 U Chi L Rev Online 8

Restoring the Lost Confirmation

   Randy E. Barnett & Josh Blackman
   83 U Chi L Rev Online 18

The Constitutional Propriety of Ideological "Litmus Tests" for Judicial Appointments

   Michael Stokes Paulsen
   83 U Chi L Rev Online 28

The Fight for Equal Protection: Reconstruction-Redemption Redux

   Kermit Roosevelt III & Patricia Stottlemyer
   83 U Chi L Rev Online 36

The 2016 Election, the Supreme Court, and Racial Justice

   Erwin Chemerinsky
   83 U Chi L Rev Online 49

Justice Scalia, the 2016 Presidential Election, and the Future of Church-State Relations

   Marci A. Hamilton
   83 U Chi L Rev Online 61

Donald Trump and Other Agents of Constitutional Change

   Michael C. Dorf
   83 U Chi L Rev Online 72