The University of Chicago Law Review

Volume 79, Issue 1 (more)

Volume 79 Symposium: Education

University of Chicago Law Review Symposium

Continuing our annual tradition, The University of Chicago Law Review is proud to announce the publication of our Volume 79 Symposium issue.  This year, noted academics and commentators from across the country converged on the topic of education.  These articles highlight the diverse and multi-faceted nature of education policy in America.

For a full list of scholars and articles included in the Volume 79 Symposium, click here.

Fiscal Federalism, Political Will, and Strategic Use of Municipal Bankruptcy

Article by Clayton P. Gillette

Municipalities in fiscal distress may seek to adjust debts under Chapter 9 of the Bankruptcy Code either because they are truly destitute or because they lack the political will to adopt difficult resource adjustments. Local officials of municipalities that enter bankruptcy proceedings nevertheless retain political authority over municipal fiscal affairs. The decision to enter bankruptcy, however, may have significant financial consequences for other municipalities or for more centralized levels of government. Those externalities induce central governments to consider bailouts for distressed municipalities. In order to avoid moral hazard problems, central governments typically impose harsh restrictions on local officials as a condition of bailout. This dual system of rescue for distressed municipalities—bailouts and bankruptcy—permits local officials to threaten to file under Chapter 9 and thus to impose costs on central governments, unless the latter modify the conditions of bailouts. In this Article, I suggest that allowing bankruptcy courts to impose resource adjustments serves to neutralize the strategic behavior of local officials and thus encourages localities to internalize the costs of their activities in a manner more consistent with the tenets of fiscal federalism.

79 U Chi L Rev 283 [Article PDF]

Copyright's Asymmetric Uncertainty

Article by Steven J. Horowitz

Conventional wisdom holds that the pervasive uncertainty in copyright law is intolerable because it inhibits expression—those who would engage in lawful uses of copyrighted works abstain for fear of crushing liability. The argument is right but for the wrong reasons. It is based on the often-unstated assumption that users who face liability are risk averse. But the leading account of decision making under uncertainty suggests that those facing potential losses are in fact risk seeking, while those facing potential gains are risk averse. In light of this asymmetry in risk preferences, copyright’s asymmetric distribution of uncertainty—salient issues for users are opaque while those for copyright holders are clear—promotes access while preserving copyright holder incentives. Users discount the risks of boundary crossing because the doctrines of access make the boundaries unpredictable, and copyright holders overvalue their entitlements because they are reliable, protecting against the most feared uses of their works with predictably potent remedies. In short, the system exploits asymmetric risk preferences through its asymmetric distribution of uncertainty. Good economics does not always make good law, however. The Rule of Law ideal also values clarity in an asymmetric way: the need for notice is at its zenith where the law imposes punishment and its nadir where the law confers benefits. Even if it is true that copyright’s asymmetric uncertainty promotes maximal expression, forcing users to shoulder the burdens of uncertainty in the name of social welfare evinces a disrespect for user autonomy that is inconsistent with the Rule of Law.

79 U Chi L Rev 333 [Article PDF]

Online Exclusive:

Special Education: Its Ethical Dilemmas, Entitlement Status, and Suggested Systemic Reforms

Article by Miriam Kurtzig Freedman

Since it was enacted in 1975, the nation’s special-education law has successfully accomplished its mission—to provide access for all students with disabilities to appropriate public school programs. Now, eligible students are entitled to a free appropriate public education (FAPE) in the least restrictive environment (LRE). We honor and celebrate this amazing accomplishment. However, having achieved its mission, this entitlement program has continued to grow and morph, creating today’s quagmire of unintended consequences. Now, almost forty years later, let us acknowledge that the law, as written and implemented, has outlived its purpose. Special education still follows a twentieth-century input- or rights-driven approach, not a twenty-first century outcome- or accountability-driven approach. It interferes with our focus on educating all children and takes educators away from their primary mission: teaching and learning. We can no longer treat special education as sacrosanct and off-limits in our national school-reform conversation. Let us preserve the spirit of the law—educating all students with disabilities—as we retool it for the 21st century. I suggest four systemic reforms. 
This Article proceeds in three parts. First, a bit of history and current realities. Second, ethical dilemmas of this private-enforcement entitlement program: flawed policies, issues of fairness, and the adversarial climate in schools. Third, four suggestions to improve education for students with disabilities in the context of school reform for all students.

The University of Chicago Law Review Online, Volume 79, Issue 1 [Article PDF]