Empirical Analysis

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Comment
Volume 92.7
Necessity in Free Exercise
Brady Earley
B.S., B.A. 2021, Brigham Young University; J.D., Ph.D. Candidate in Political Science, The University of Chicago.

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.

Constitutional Law Empirical Analysis Freedom of Religion
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Article
Volume 92.4
Contract or Prison
S.R. Blanchard

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.

Contracts Criminal Law Empirical Analysis
2
Article
75.2
Does Political Bias in the Judiciary Matter?: Implications of Judicial Bias Studies for Legal and Constitutional Reform
Eric A. Posner
Kirkland and Ellis Professor of Law, The University of Chicago

Thanks to Jake Gersen, Todd Henderson, Daryl Levinson, Jens Ludwig, Richard McAdams, Tom Miles, Matthew Stephenson, David Strauss, Adrian Vermeule, Noah Zatz, and participants at a workshop at The University of Chicago Law School for helpful comments.

Empirical Analysis Judicial Decision-Making
2
Article
75.2
The New Legal Realism
Thomas J. Miles
Assistant Professor of Law, The University of Chicago
Cass R. Sunstein
Karl N. Llewellyn Distinguished Service Professor, The Law School and Department of Political Science, The University of Chicago

We are grateful to Susan Bandes, Elizabeth Foote, Jacob Gersen, Brian Leiter, Anup Malani, Richard McAdams, Elizabeth Mertz, Jonathan Nash, Eric Posner, Adam Samaha, Larry Solum, David Strauss, Noah Zatz, and participants in a work-inprogress lunch at The University of Chicago Law School for valuable comments. We are also grateful to the Chicago Judges Project, and in particular to Dean Saul Levmore, for relevant support.

Administrative Law Empirical Analysis
2
Article
75.2
The Real World of Arbitrariness Review
Thomas J. Miles
Assistant Professor of Law, The University of Chicago
Cass R. Sunstein
Karl N. Llewellyn Distinguished Service Professor, The Law School and Department of Political Science, The University of Chicago

We thank Eric Posner, Richard Posner, Peter Strauss, and Adrian Vermeule for helpful comments. We are also grateful to Rachael Dizard, Casey Fronk, Darius Horton, Matthew Johnson, Bryan Mulder, Brett Reynolds, Matthew Tokson, and Adam Wells for superb research assistance.

Administrative Law Empirical Analysis Judicial Decision-Making
2
Article
75.2
Reviewing the Sentencing Guidelines: Judicial Politics, Empirical Evidence, and Reform
Max M. Schanzenbach
Professor of Law, Northwestern University School of Law
Emerson H. Tiller
Stanford Clinton Senior Research Professor of Law, Northwestern University School of Law

The authors would like to thank Jason Friedman, Ben Schaye, and Grace Tabib for excellent research assistance. The authors also thank participants in workshops at Harvard Law School, Yale Law School, and the University of Minnesota School of Law for helpful comments.

Criminal Law Empirical Analysis Sentencing
2
Article
75.2
Affirmative Action in Law School Admissions: What Do Racial Preferences Do?
Jesse Rothstein
Assistant Professor of Economics and Public Affairs, Princeton University
Albert H. Yoon
Professor of Law and Professor of Political Science (by courtesy),Northwestern University

We are thankful for comments from workshop participants at the American Bar Foundation, the National Bureau of Economic Research, and The University of Chicago; and from Douglas G. Baird, Richard Brooks, David Gerber, Lani Guinier, John Heinz, Bill Kidder, Richard Lempert, Tracey Meares, Randall Picker, Eric Posner, Max Schanzenbach, Stephen M. Shavell, David Weisbach, Justin Wolfers, and Robert Yalen. We thank the Andrew W. Mellon Foundation for financial support.We alone are responsible for the contents and for all remaining errors.

Civil Rights Education Empirical Analysis Legal Profession
2
Article
75.4
Judicial Ideology and the Transformation of Voting Rights Jurisprudence
Adam B. Cox
Assistant Professor of Law, The University of Chicago
Thomas J. Miles
Assistant Professor of Law, The University of Chicago

We are grateful to Rosalind Dixon, Heather Gerken, Rick Hasen, Sam Issacharoff, Jonathan Masur, Rick Pildes, Adam Samaha, Max Schanzenbach, Josh Sellers, Cass Sunstein, Emerson Tiller, Dan Tokaji, and Fred Vars for helpful comments and conversations. We would also like to thank the workshop participants at Northwestern University School of Law, University of Toronto Faculty of Law, Yale Law School, the Searle Symposium on Empirical Studies of Civil Liability, and the Conference on Empirical Legal Studies. Carolyn Sha and Annabelle Yang provided invaluable research assistance.

Election Law Empirical Analysis Voting Rights Act
2
Book review
76.1
Rethinking the Connection between Developmental Science and Juvenile Justice
Emily Buss
Mark and Barbara Fried Professor of Law and Kanter Director of Chicago Policy Initiatives, The University of Chicago Law School

My thanks to Catherine Kiwala, for her excellent research assistance, and to participants in The University of Chicago’s Developmental Psychology Graduate Seminar for their helpful comments. The Arnold and Frieda Shure Research Fund and the Kanter Family Foundation Initiatives Fund provided support for this research.

Children and Families Empirical Analysis

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