A Core of Agreement
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We are deeply gratified by this exchange with Professors John Darley, Paul Robinson, Owen Jones, and Robert Kurzban. We have benefited a great deal from their research, and this encounter only adds to our appreciation. Their work has always been exceptional in its devotion to empirical exploration and experimentation. We are grateful to them for taking the time to share their thoughts with us and with the readers of this journal. In responding, we are unsurprised to find that we are in agreement with quite a bit of what they have to say.
This Case Note offers some direction for handling competing interests in this developing body of law and other complex cases weighing intersecting constitutional rights against governmental interests. Parts I and II provide background information, describing the Sell test and the current state of constitutional and statutory religious protections. Part III critically analyzes how courts, including the Fifth Circuit, have considered religious objections in Sell determinations so far. Because such analysis remains underdeveloped in the courts, Part IV suggests frameworks for coherently integrating Free Exercise doctrine into Sell inquiries based on the “hybrid theory” of constitutional rights.
For helpful comments, I am grateful to participants in the Contracts Section Works-in-Progress Panel at the 2023 AALS Annual Meeting; faculty workshops at George Mason Scalia Law School, Indiana University McKinney Law School, Notre Dame Law School, the University of Florida Law School, the University of Texas Law School, Vanderbilt Law School, and Washington University Law School; the Legal Scholarship Workshop at the University of Chicago; the Workshop on Law, Economics, and Justice at the University of Lucerne; CrimFest; the Decarceration Law Conference; the Junior Business Law Scholars Conference; Markelloquium; and to Ian Ayres, Lisa Bernstein, Sam Bray, Christian Burset, Eric Fish, Rick Garnett, Sherif Girgis, Nadelle Grossman, Daniel Markovits, Jide Nzelibe, J. Mark Ramseyer, Christopher Slobogin, Avishalom Tor, Francisco Urbina, and Julian Velasco. Noah Austin, Zack Beculheimer, Gwendolyn Loop, Savannah Shoffner, Tri Truong, and Steven Tu provided excellent research assistance. Any errors are mine.
Critics of the criminal enforcement system have condemned the expansion and privatization of electronic monitoring, criminal diversion, parole, and probation. But the astonishing perversion of contract involved in these new practices has gone unnoticed. Though incarceration-alternative (IA) contracting is sometimes framed as humane, historical and current context illuminates its coercive nature. IA contracting must be examined under classical contract theory and in light of the history of economic exploitation using criminal enforcement power harnessed to contract, including in the racial peonage system under Jim Crow. This Article documents this systematic underregulation through the first empirical study of legal regimes for IA contracts. To the extent that the theoretical limits of contract are not presently reflected in the common law of contract, regulatory reforms that better regulate seller and government practices might reduce the risk of exploitation.
For helpful comments, I am grateful to participants in the Contracts Section Works-in-Progress Panel at the 2023 AALS Annual Meeting; faculty workshops at George Mason Scalia Law School, Indiana University McKinney Law School, Notre Dame Law School, the University of Florida Law School, the University of Texas Law School, Vanderbilt Law School, and Washington University Law School; the Legal Scholarship Workshop at the University of Chicago; the Workshop on Law, Economics, and Justice at the University of Lucerne; CrimFest; the Decarceration Law Conference; the Junior Business Law Scholars Conference; Markelloquium; and to Ian Ayres, Lisa Bernstein, Sam Bray, Christian Burset, Eric Fish, Rick Garnett, Sherif Girgis, Nadelle Grossman, Daniel Markovits, Jide Nzelibe, J. Mark Ramseyer, Christopher Slobogin, Avishalom Tor, Francisco Urbina, and Julian Velasco. Noah Austin, Zack Beculheimer, Gwendolyn Loop, Savannah Shoffner, Tri Truong, and Steven Tu provided excellent research assistance. Any errors are mine.
Critics of the criminal enforcement system have condemned the expansion and privatization of electronic monitoring, criminal diversion, parole, and probation. But the astonishing perversion of contract involved in these new practices has gone unnoticed. Though incarceration-alternative (IA) contracting is sometimes framed as humane, historical and current context illuminates its coercive nature. IA contracting must be examined under classical contract theory and in light of the history of economic exploitation using criminal enforcement power harnessed to contract, including in the racial peonage system under Jim Crow. This Article documents this systematic underregulation through the first empirical study of legal regimes for IA contracts. To the extent that the theoretical limits of contract are not presently reflected in the common law of contract, regulatory reforms that better regulate seller and government practices might reduce the risk of exploitation.