An Information-Production Theory of Liability Rules
Assaf Jacob - Harry Radzyner Law School, Reichman University (IDC).    
Roy Shapiro - Harry Radzyner Law School, Reichman University (IDC).

The negligence-versus–strict liability debate is over in tort law, and negligence has clearly won. Yet the fact that our accident-compensation system is fault based continues to attract much opposition in popular sentiment and academic circles. Standard 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. Tort litigation affects behavior not just directly through imposing sanctions but also indirectly through producing information on how the disputants behaved. Third parties can then use information from litigation to decide whether to avoid the defendant or not. And the choice of liability rules dictates the magnitude and scope of these informational effects: negligence produces more valuable information on the behavior of market actors than strict liability does.

Litigation under negligence produces granular information on whether the defendant could have reasonably avoided the harm, how she fares relative to others in her profession, and so on. Such information, to the extent it becomes public, allows outside observers to infer whether the past accident is indicative of the defendant’s future behavior or not, which in turn affects their willingness to do business with her going forward. A physician found negligent may lose future patients, a seller failing the consumer-expectations test in products liability may lose future consumers, and so on. Litigation under strict liability produces much coarser information— namely, that a harm occurred as a result of the defendant’s activity. It rarely provides outside observers with information on the competence or integrity of the defendant vis-à-vis her peers. The efficiency rationale for negligence thus stems from facilitating more robust market discipline. In contrast to what influential accounts in economic analysis suggest, negligence does affect the activity levels of potential injurers, albeit from the demand side: by warning third parties, it reduces market demand for the services of risky actors.

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.

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. First, it identifies that the otherwise right-to-education foreclosing case, San Antonio Independent School District v. Rodriguez, only contemplated education as a fundamental right or liberty interest. Second, by identifying public education as a due process–protected property interest, this Article presents a viable pathway for circumventing Rodriguez. Third, mindful of myriad judicial competency concerns and consistent with the Court’s recent call to reimagine a “twenty-first-century” due process, it reintroduces the “public right” to understand how school-children might appeal to substantive due process to protect their rights to state-created interests. This ambitious yet modest approach covers securing schoolchildren’s rights to both discrete education tangibles and the integral educational opportunity that the states have assumed the affirmative duty to provide. This approach also has promise for improving individual rights to quality public schooling.


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.

Pretrial detention seriously restricts the physical liberty of presumptively innocent people who have yet to be tried and convicted. The Bail Reform Act (BRA) imposes several procedural requirements that must be satisfied before a judge can order the pretrial detention of a federal defendant. At a detention hearing, the BRA allows a judge to order the pretrial detention of an arrestee who poses either a danger to the community or a flight risk. The BRA states unequivocally that a finding of dangerousness must be supported by clear and convincing evidence, but the statute is silent as to the evidentiary standard for establishing a defendant’s flight risk. In the absence of statutory guidance, the courts of appeals have utilized a “preponderance of the evidence” standard.

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. Using these cases as a baseline, this Comment applies the Mathews v. Eldridge due process framework to reveal the constitutional infirmity of the preponderance standard for pretrial flight risk.

In making the interpretive argument for a clear and convincing evidence standard, this Comment dissects the BRA’s legislative history and statutory evolution to show that Congress intended for flight risk and dangerousness to be considered under equivalent standards. This Comment concludes by making a constitutional avoidance argument: there exists (1) a serious question as to the constitutional validity of the preponderance standard for flight risk and (2) a plausible interpretation of the BRA—that flight risk ought to be proven by clear and convincing evidence—that avoids those constitutional concerns.

What's the Use?: Interpreting the Term "Uses" in the Aggravated Identity Theft Provision     
Shang-Chi Andrew Liu - B.A. 2020, Emory University; J.D. Candidate 2023, The University of Chicago Law School.

The Identity Theft Penalty Enhancement Act (ITPEA) increases penalties for crimes that involve the unlawful use of another person’s identifying information. A subsection of the ITPEA—the aggravated identity theft provision—imposes a mandatory two-year sentencing enhancement on a defendant who “uses” a means of identification of another person during and in relation to a predicate felony. Currently, federal circuit courts disagree about whether the term “uses” in the statute is ambiguous and whether the rule of lenity should consequently apply to narrow its reach. On the one hand, courts that have held the statute to be ambiguous apply the rule of lenity to hold that a defendant qualifies for the enhancement only if the defendant has directly impersonated another person. On the other hand, courts that have held the statute to be unambiguous reason that the plain text of the statute demands that the defendant need only generally misuse another’s information in the facilitation of fraud.

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. This reading draws support from an analogous case in a comparable criminal context, interactions between interpretive canons, and legislative history found in the amendment notes to the ITPEA. This reading also provides practical benefits for courts assessing these issues in a contemporary technological landscape rife with digital political dissent and vigilante hacktivism.

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

Unlike typical litigants, pro se prisoners are unable to deliver filings to court or to have an attorney do so on their behalf. Such prisoners are forced to rely on their prisons’ mailing systems to file documents, which often results in those documents reaching the court after the applicable deadlines. Accordingly, the Supreme Court created a “prison mailbox rule” in Houston v. Lack, under which some filings by prisoners are considered filed when they are given to prison officials for mailing, rather than when they reach the court.

Defining the exact reach of that prison mailbox rule has created considerable discord among lower courts, especially in light of the Court’s subsequent holding in Fex v. Michigan and its adoption of formal procedural rules governing the timing of prisoners’ court filings. This Comment tackles three different issues left unresolved by the Supreme Court. 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. The proposed framework provides a step-by-step process for determining whether a prison mailbox rule applies to a particular type of filing by a particular litigant, bringing some much-needed clarity and uniformity to the debate surrounding Houston.