Kids Are Not So Different: The Path from Juvenile Exceptionalism to Prison Abolition
Emily Buss - Mark and Barbara Fried Professor of Law at the University of Chicago Law School
Inspired by the Supreme Court’s embrace of developmental science in a series of Eighth Amendment cases, “kids are different” has become the rallying cry, leading to dramatic reforms in our response to juvenile crime designed to eliminate the incarceration of children and support their successful transition to adulthood. The success of these reforms represents a promising start, but the “kids are different” approach is built upon two flaws in the Court’s developmental analysis that constrain the reach of its decisions and hide the true implications of a developmental approach. Both the text of the Court’s opinions and the developmental and neuroscientific research on which the opinions rely reveal that the developmental approach is not coherently defined by the legal line between childhood and adulthood. This lack of alignment has led to calls to extend the age of juvenile exceptionalism to young adulthood. But extending the exceptionalist frame obscures the central role that immaturity plays in most offenders’ full criminal careers and preserves a destructive fiction that youthful offenders are a distinctive, more sympathetic, and less corrupt subset of the millions of people charged with committing crimes. This Article argues that the developmental approach, followed to its logical conclusion, calls not for an age extension for juvenile exceptionalism but rather for a wholesale remaking of the entire criminal justice system in line with an abolitionist vision.
Matthew Jennejohn - Professor of Law, BYU Law School.
Julian Nyarko - Assistant Professor of Law, Stanford Law School.
Eric Talley - Isidor & Seville Sulzbacher Professor and Faculty Codirector of the Millstein Center for Global Markets & Corporate Ownership, Columbia Law School.
Conventional wisdom portrays contracts as static distillations of parties’ shared intent at some discrete point in time. In reality, however, contract terms evolve in response to their environments, including new laws, legal interpretations, and economic shocks. While several legal scholars have offered stylized accounts of this evolutionary process, we still lack a coherent, general theory that broadly captures the dynamics of real-world contracting practice. This paper advances such a theory, in which the evolution of contract terms is a byproduct of several key features, including efficiency concerns, information, and sequential learning by attorneys who negotiate several deals over time. Each of these factors contributes to the underlying evolutionary process, and their relative prominence bears directly on the speed, direction, and desirability of how contractual innovations diffuse. Using a formal model of bargaining in a sequence of similar transactions, we demonstrate how different evolutionary patterns can manifest over time, in both desirable and undesirable directions. We then take these insights to a real-world data set of over two thousand merger agreements negotiated over the last two decades, tracking the adoption of several contractual clauses, including pandemic-related terms, #MeToo provisions, Committee on Foreign Investment in the United States (CFIUS) conditions, and reverse termination fees. Our analysis suggests that there is not a one-size-fits-all paradigm for contractual evolution. Rather, the constituent forces affecting term evolution manifest in varying strengths across differing circumstances. We highlight several constructive applications of our framework, including how the study of contract negotiation unfolds when price cannot easily be adjusted and how to incorporate other forms of cognitive and behavioral biases into our general framework.
The Exception to Rule 12(d): Incorporation by Reference of Matters Outside the Pleadings
Laura Geary - B.A. 2018, Swarthmore College; J.D. Candidate 2023, The University of Chicago Law School.
Defendants frequently attach supporting materials to Rule 12(b)(6) motions to dismiss for failure to state a claim. The plain text of Federal Rule of Civil Procedure 12(d) dictates that judges must either exclude this material or treat the motion as one for summary judgment. However, a substantial exception has emerged that threatens to swallow the rule.
The exception, called incorporation by reference, permits the consideration of outside materials when they are either referenced in the pleadings, central to the claim, or sometimes both. Courts have defined these elements differently and have diverged in their understandings of the doctrine. Incorporation by reference appealingly offers an expedient route to resolve cases. But it also skirts the text and intention of the Federal Rules. This Comment explores the history of Rule 12(d), describes courts’ varying uses of the exception, and proposes a unifying method of interpretation for the future. Drawing on other procedural rules and an analogous doctrine in contract law, it argues that only unmistakably referenced written instruments may be incorporated.
In Need of Better Material: A New Approach to Implementation Challenges Under the IDEA
Annie Kors - B.A. 2018, Yale University; J.D. Candidate 2023, The University of Chicago Law School.
The Individuals with Disabilities Education Act (IDEA) provides a substantive guarantee to a “free appropriate public education” (FAPE) to students with disabilities. The education is to be provided “in conformity with” an “individualized education program” (IEP): an educational plan for the student that is created through a statutorily defined process. Scholars and courts have focused tremendous attention on the level of educational quality that an IEP must offer to meet the IDEA’s requirements. But the creation of an adequate plan is, of course, not the end of the story; the school district then has to implement the plan. This leaves an important question: How far may a school district deviate from the services specified in an IEP and remain in compliance with the IDEA? In other words, how much of the adequate written plan is the student in fact entitled to receive? There are two existing approaches to failure-to-implement cases: the materiality approach and the per se test.
This Comment argues that both approaches are flawed. The materiality standard circumvents the procedural protections of the IDEA, provides little predictability to parents and schools, offers little guidance to courts, forces judges away from areas of institutional competence, and incentivizes school districts to overpromise and underdeliver. The per se rule, on the other hand, is insufficiently flexible given its practical and statutory constraints, would disincentivize ambition and innovation in IEPs, and is unlikely to be adopted by courts.
This Comment proposes a new approach—a burden-shifting test that accounts for both (1) unforeseen or unavoidable circumstances and (2) the proportionality of the school’s response to those circumstances. This approach integrates the benefits of both the materiality inquiry and the per se rule. It better honors several important aspects of the statutory scheme, better aligns with the statutory text, and accords with Supreme Court precedent. It also encourages IEP drafters to craft realistic plans that nonetheless aspire to deliver the best results for students.
The Constitutionality of Orthodoxy: First Amendment Implications of Laws Restricting Critical Race Theory in Public Schools
Dylan Salzman - B.A. 2019, Middlebury College; J.D. Candidate 2023, The University of Chicago Law School.
The past two years have seen a proliferation of state laws that restrict how race may be discussed in public schools. Among other topics, these laws commonly ban presentation of the viewpoint that the U.S. government—or legal system—is racist. But such policies raise important First Amendment questions: while it is well accepted that school boards and state legislatures retain great discretion to promulgate curricula, the exact scope of that authority is unclear. The Supreme Court case most closely related to this question, Hazelwood School District v. Kuhlmeier, addresses only when school districts may permissibly regulate student speech in curricular contexts. Hazelwood does not resolve the antecedent question of whether local educational authorities may constitutionally constrict the range of permissible political viewpoints in curricula.
This Comment argues that existing doctrine supports recognizing a student right to be free from political orthodoxy in public education. It proposes a burden-shifting test for vindicating that right. First, courts should evaluate whether curricular decisions restrict discussion of political viewpoints. Second, the government should have the opportunity to show that the restriction serves a legitimate interest, in part pursuant to the test laid out in Tinker v. Des Moines Independent Community School District. Finally, plaintiffs should be able to prove that the government’s restriction was based on impermissible animus. This Comment concludes by arguing that certain provisions in recently passed critical-race-theory laws should be considered unconstitutional because they restrict political discussion without legitimate justification.