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.
I would like to thank Professor Geoffrey Stone and members of The University of Chicago Law Review including Owen Hoepfner, Jack Brake, Hannah Zobair, Ryan Jain-Liu, Zoë Ewing, Jackson Cole, and others for contributing to the publication of this Comment.
The Free Exercise Clause is a broadly worded constitutional prohibition against government intrusion on religious exercise. To construct limits, courts have consistently required government officials to demonstrate the necessity of state action burdening religion. Yet government officials regularly fail to produce evidence of necessity, leaving judges to intuit or assume whether necessity exists. In this Comment, Brady Earley offers a better way. Using a method known as difference-in-differences (DiD), lawmakers can draw upon the experience of existing state laws to enact laws justified with evidence. The Comment demonstrates the value of DiD with a current free exercise controversy involving the Old Order Amish and their objection to Ohio’s flashing light requirement for buggies. Applying DiD to this conflict reveals that Ohio’s buggy light law led to an estimated 23% reduction in buggy-related crashes compared to Michigan and Kentucky—states with less restrictive buggy requirements. Beyond this case study, the Comment also discusses how DiD can help address recent Supreme Court conflicts over tax exemptions for religious organizations, LGBTQ-themed books in schools, and religious charter schools. These examples grapple with the problems and the showcase the possibilities of a data-driven method to address necessity in free exercise.
I would like to thank Jenna Liu, Jack Brake, Alex Moreno, Miranda Coombe, and the rest of The University of Chicago Law Review editors and staff for their thoughtful feedback. I would also like to thank the attorneys in the DVSJA Practice at Appellate Advocates for introducing me to this area of law and advocating tirelessly for incarcerated survivors.
In this Comment, Zoë Lewis Ewing evaluates the implementation of the Domestic Violence Survivors Justice Act (DVSJA), a New York law passed in 2019 to provide shortened sentencing ranges for domestic violence survivors convicted of crimes. It identifies an inconsistency in sentencing courts’ application of the law’s causation standard, which requires that a petitioner’s experience of domestic violence be a “significant contributing factor” to their criminal conduct. Some courts interpret the prong narrowly, while others apply a broad causation standard. This Comment argues that courts should opt for the latter approach and consider causation in the DVSJA satisfied if domestic violence was “sufficiently significant to have likely helped bring about the criminal conduct.”
I would like to thank Maria Sofia Peña, Joseph Oten, Zoë Ewing, Karan Lala, John Cooper, Chloe Li, Helen Chamberlin, Quinten Rimolde, Jonathan Tao, Luke Henkel, Jackson Cole, Robert Dohrman, Hana Ferrero, Miranda Coombe, and all the other wonderful editors and staff of The University of Chicago Law Review for their insightful feedback and careful editing. I would also like to thank my family for their unconditional support.
In this Comment, Sabrina Huang argues that courts should eliminate the subjective malice requirement for Fourth Amendment malicious prosecution claims. She draws on other constitutional torts that arise during encounters with actors in the criminal justice system to show that a plaintiff-friendly objective standard is more appropriate than a subjective standard. If courts are unwilling to eliminate the malice requirement, the Comment proposes an alternative to the requirement: a burden-shifting test. The intended effects of both proposals are to expand relief to more litigants across jurisdictions, harmonize Fourth Amendment jurisprudence, and deter police and prosecutorial misconduct.