Volume 89.5
September
2022

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Article
Volume 89.5
An Information-Production Theory of Liability Rules
Assaf Jacob
Harry Radzyner Law School, Reichman University (IDC)
Roy Shapira
Harry Radzyner Law School, Reichman University (IDC)

We thank Ronen Avraham, Shahar Dillbary, Avihay Dorfman, Ehud Guttel, Alon Harel, Yotam Kaplan, Dan Klerman, Steve Shavell, and Alfred Yen for helpful comments, and Yael Amiel, Tal Elmakaiess and Talya Yosphe for excellent research assistance.

tandard 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 for negligence by spotlighting the information-production function of tort law.

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Volume 89.5
The Public Right to Education
Matthew Patrick Shaw
Assistant Professor of Law, Vanderbilt Law School; Assistant Professor of Public Policy and Education, Vanderbilt Peabody College. Affiliated Scholar, American Bar Foundation. J.D., Columbia University; Ed.D., Ed.M., Harvard University; A.B., University of North Carolina at Chapel Hill.

I thank Bernadette Atuahene, David Baluarte, Derek Black, Lisa Schultz Bressman, Jessica Clarke, Shari Diamond, Jonathan Feingold, Jonathan Glater, Vinay Harpalani, Brandon Hasbrouck, Brant Hellwig, Alexandra Klein, Terry Maroney, Ajay Mehrotra, Elizabeth Mertz, Robert Mikos, Melissa Murray, Laura Beth Nielsen, Shaun Ossei-Owusu, Kish Parella, Asad Rahim, James Ryan, Christopher Schmidt, Christopher Serkin, Daniel Sharfstein, Joan Shaughnessy, Jennifer Shinall, Fred Smith, Kevin Stack, Alan Trammell, Joshua Weishart, Kevin Woodson, Dwayne Wright, and Ingrid Wuerth for their helpful feedback on early drafts and much needed collegial support. I also thank the Frances Lewis Law Center at the Washington and Lee University School of Law and Christopher Seaman and Allegra Steck of that Center for their generous research support and Vanderbilt University’s Peabody College for its equally generous support for the research leave that yielded this Article. Franklin Runge at the Washington and Lee University School of Law provided incomparable library support, and George Bouchard, Francisco Santelli, Russel Wade, Jon D’Orazio, Richard Hall, Michelle Koffa, Ashton Toone, and Wesley Wei provided invaluable research assistance. I would also like to thank the student editors of the Law Review. This Article also benefitted immensely from helpful comments and remarks in faculty workshops at the American Bar Foundation, University of Chicago Law School, Vanderbilt Law School, and Washington and Lee University School of Law, as well as in the John Mercer Langston Workshop.

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.

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Comment
Volume 89.5
Pretrial Detention by a Preponderance: The Constitutional and Interpretive Shortcomings of the Flight-Risk Standard
Jaden M. Lessnick
B.A. 2020, Emory University; J.D. Candidate 2023, The University of Chicago Law School.

I am immeasurably grateful for the input and mentorship of Professor Alison Siegler, whose tireless and groundbreaking pretrial detention advocacy inspired this Comment. I also benefitted greatly from the suggestions and patience of Alec Mouser and Simon Jacobs. Thanks as well to Professors Ryan Doerfler, Daniel Wilf-Townsend, Erica Zunkel, and Judith Miller, and to the editors of the University of Chicago Law Review. Finally, thanks to my parents, whose support has been unwavering.

This Comment contends that the preponderance standard for flight risk is unconstitutional and interpretively incorrect. In cases involving similar government restrictions on physical liberty, the Supreme Court has generally required at least a “clear and convincing evidence” standard to comport with due process.

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Volume 89.5
What's the Use?: Interpreting the Term "Uses" in the Aggravated Identity Theft Provision
Shang-Chi Andrew Liu
B.A. 2020, University of California, Los Angeles; J.D. Candidate, The University of Chicago Law School.

Many thanks to the editors and staff of the University of Chicago Law Review for their helpful advice and insight.

This Comment argues that the rule of lenity is improper in the context of the aggravated identity theft provision because a variety of interpretive tools are available and operative. For that reason, courts should apply the statute in accordance with its broad plain meaning by construing “uses” as requiring only general misuse of another person’s identifying information.

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Volume 89.5
Untangling the Prison Mailbox Rules
Mario Ramirez
B.A. 2020, University of Florida; J.D. Candidate 2023, The University of Chicago Law School.

I would like to thank my fellow Law Review editors for their thoughtful feedback.

Focusing particularly on the Court’s instructions about when courts should apply a prison mailbox rule, this Comment provides a solution to each of those three issues and then combines those answers into a simple, easy-to-apply framework.

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