Black Metropolis Research Consortium
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The Independent State Legislature Theory, Federal Courts, and State Law
Get PDFDuring the litigation surrounding the 2020 election, the independent state legislature theory (ISLT) emerged as a potentially crucial factor in the presidential election. The ISLT rests on the Electors and Elections Clauses of the Constitution, which assign decisions about federal elections to state legislatures. Proponents of the ISLT, including Supreme Court Justices, assert that state constitutions’ substantive provisions cannot apply to state election laws governing federal elections; that state courts’ statutory interpretations of such laws must be rigidly textualist and are reviewable, apparently de novo, by federal courts; and/or that delegations of decisionmaking authority to nonlegislative bodies may be limited, albeit in unspecified ways. The ISLT is at issue in current litigation involving congressional redistricting that the Supreme Court will hear during its October 2022 Term.
This Article charts the emergence of this unprecedented reading of the Electors and Elections Clauses and examines both its justifications and its practical implications. Its central claim is that the ISLT, particularly in its maximalist form, is an unprecedented, unconstitutional, and potentially chaos-inducing intrusion into state election law. Those promoting the ISLT skip the crucial step of statutory interpretation—asking what the state legislature actually did. As a result, the ISLT undermines its own claims to promote political accountability and predictability by failing to engage in the question of whether a legislature has in fact rejected the state constitution and other aspects of state law. The Article concludes with suggestions for the Supreme Court, Congress, state actors, and litigants to protect the continued independence of state election law
The Promise & Perils of Open Finance
Get PDFWe are at the dawn of a new age of Open Finance. Open Finance seeks to harness the potential of new platform technology to enhance customer data access, sharing, portability, and interoperability—thereby leveling the informational playing field and fostering greater competition between incumbent financial institutions and a new breed of financial technology (fintech) disruptors. According to its proponents, this competition will yield a radical restructuring of the financial services industry, offering more and better choices for consumers looking to make fast payments, borrow money, invest their savings, manage household budgets, and compare financial products and services. The promise of Open Finance is very real. Yet its proponents have largely ignored the economics driving the development of the key players at the heart of this new infrastructure: data aggregators.
Data aggregators are the connective tissue of Open Finance—the pipes through which most of this valuable data flow. Like other types of infrastructure, these pipes are characterized by economies of scale and network effects that erect substantial barriers to entry, undercut competition, and propel the market toward monopoly. In the United States, these dynamics are compounded by the highly fragmented structure of both the conventional financial services industry and the emerging fintech ecosystem. The result is an embryonic market structure in which a small handful of data aggregators have a massive head start, and where one company in particular—Plaid—already enjoys a dominant market position. This Article describes the promise and perils of Open Finance and explains how policymakers can tap into its potential while simultaneously preventing the abuse of monopoly power and avoiding the creation of a new strain of too-big-to-fail institutions
Misprioritized Information: A Theory of Manipulation
No full textThis paper lays a foundation for a new theory of manipulation based on the misprioritization of (truthful) information. Since consumers review only a subset of all available information, firms can harm consumers by prioritizing information that maximizes firms’ profits but has a smaller impact on the utility that consumers stand to gain from the purchase. Moreover, the distortions due to misprioritized information can arise not only from firms’ boastful disclosures but also from the warnings and disclosures mandated by lawmakers. This paper identifies the product and market characteristics that determine the optimal prioritization of information and, correspondingly, the incidence of harm when the wrong information is prioritized for disclosure—either voluntarily by sellers or by legal mandate. It provides a framework for optimal legal intervention
Law School Record, vol. 70, no. 1 (Fall 2023)
Get PDFMessage from the Dean Law School Faculty Shaping the Law with Their Ideas Lies and the Law With Two Generous Gifts, Pavel Malyi, LLM ’95, Promotes the Rule of Law Internationally Three Alumni to Clerk on US Supreme Court in 2023–2024 Term Art and the Law The Producers Law School Clinic Secures US Supreme Court Win in ICWA Case Student Q&A Law School Student and Alumna Win Coveted New Venture Awards Graduation 2023 Chicago Unbound Scenes From Orientation Development News In Memoriam Meet the Class of 2026https://chicagounbound.uchicago.edu/lawschoolrecord/1154/thumbnail.jp
Gender and the Social Structure of Exclusion in U.S. Corporate Law
Get PDFLaw develops through collective effort. A single judge may write a judicial opinion, but only after an (often large) group of lawyers chooses litigation strategies, crafts arguments, and presents their positions. Despite their important role in the legal process, these networks of lawyers are almost uniformly overlooked in legal scholarship—a black box in a discipline otherwise obsessed with institutional detail.
This Article focuses on a particularly crucial way that the structure of professional networks may shape the path of the law. Prior qualitative research suggests that networks are an important source of information, mentoring, and opportunity, and that those social resources are often withheld from lawyers who do not mirror the characteristics of the typically male, wealthy, straight, and white incumbents in the field. We have a common nickname for the networks that result, which are ostensibly open but often closed in practice: “old boys’ networks.”
For the first time in legal scholarship, this Article quantitatively analyzes gender representation within a comprehensive network of judges and litigators over a significant period of time. The network studied is derived from cases before the Delaware Court of Chancery, a systemically important trial court that adjudicates the most—and the most important—corporate law disputes in the United States. Seventeen years of docket entries across more than fifteen thousand matters and two thousand seven hundred attorneys were collected as the basis for a massive network.
Analyzing the Chancery Litigation Network produces a number of important findings. First, we find a dramatic and persistent gender gap in the network. Women are not only outnumbered in the network but also more peripheral within it compared to men. Second, we find that law firm membership and geographical location interact with gender—women’s positions within the network differ by membership in certain firms or residence in particular geographies. Finally, as we drill down into the personal networks of individual women, we find arresting evidence of the social barriers female Chancery litigators regularly confront: from working overwhelmingly—sometimes exclusively—with men in the early years of their careers to still being shut out of male-dominated cliques as their careers mature.
The Article’s findings set the stage for subsequent research to test the connection between gender representation in litigation networks and discrete outcomes, such as the incidence of bias in judicial opinions. It also demonstrates how subsequent research can incorporate network structure into quantitative and qualitative studies of not only gender bias but also other forms of inequality in law. With respect to policy, it provides the necessary first step to crafting normative interventions that improve equitable access to social resources by making networks more empirically concrete. With that added clarity, the network approach then allows us to calibrate remedial options available to bar associations, law firms, and individual attorneys, leaving no level of the institutional setting untouched
When Federal Courts Remediate Intrastate Redistricting Stalemates: Parsing What Is Owed Deference When State Policies Conflict
Get PDFWhen partisan politics completely frustrate the efforts of a state to redistrict after a census, federal district courts are tasked with the “unwelcome obligation” of imposing court-ordered electoral maps that meet the federal constitutional one-per- son, one-vote requirement. This Comment terms these cases “intrastate redistricting stalemates,” novelly distinguishing them from other Equal Protection one-person, one-vote cases. In the wake of Moore v. Harper, federal courts may be remediating more intrastate redistricting stalemates than ever if state courts are stripped of their power to impose remedial congressional maps as outside the scope of “ordinary judicial review” permitted under the Elections Clause.
Remediating intrastate redistricting stalemates is trickier for federal courts than remediating other Equal Protection one-person, one-vote cases. In crafting or selecting remedial maps, the U.S. Supreme Court has instructed federal courts that they must defer to states’ policies and plans. To inadequately do so is reversible error. But when is a state policy or plan owed deference? The answer is clear in cases where a state has recently redistricted but a federal court has struck down the state’s new maps for failure to meet federal constitutional or statutory requirements: the state’s policies as expressed in its recently enacted, post-census reapportionment plan are owed deference to the extent they do not violate federal requirements.
But when a state fails to redistrict post-census due to an intrastate stalemate, this Comment argues that there is no recently enacted reapportionment plan owed deference. This Comment argues this holds true whether the intrastate stalemate presents as (1) an intralegislative conflict, due to one or both legislative branches failing to agree on a map or to garner sufficient votes to pass a map; (2) a conflict between the state’s legislative branch and the executive branch via the governor vetoing a legislatively passed map; or (3) a conflict between the state judiciary and the mapmaking body over the state constitutionality of the reapportionment plan.
Instead, this Comment argues that the controlling source of state policy owed deference when remediating an intrastate redistricting stalemate must be the state’s constitution over other conflicting sources of state policy. This is particularly critical because often state government parties advocate for their own rejected or stalled reapportionment plans—which do not have the force of law—as proposed remedies in these intrastate stalemate cases. To blindly select a proposed map solely because it was prepared by the branch delegated with state mapmaking power puts the federal court in the position of selecting a winner in a bitter, hyperpartisan dispute that could not exist under the state constitution’s checks and balances—which remain critical after Moore. Instead, a federal court must select or craft a remedial map that (1) comports with all state constitutional commands and controls for electoral map outcomes; and (2) best embodies state redistricting policies as expressed in other valid state statutes
International Agreements by U.S. States: Federalism, Foreign Affairs, and Constitutional Change
Get PDFThe text of the U.S. Constitution appears to require that, to the extent that individual states are ever allowed to conclude agreements with foreign governments, they must obtain congressional approval. In practice, however, states conclude many agreements with foreign governments and almost never seek congressional approval. This practice is an illustration of both the importance of federalism in U.S. foreign relations and the significant role played by historical practice in informing U.S. constitutional interpretation. The phenomenon of state international agreements assumed new prominence in 2019 when the Trump administration sued to challenge a climate change agreement that the state of California had made with the Canadian province of Quebec. Despite this challenge, for the most part neither Congress nor the executive branch has resisted the growth in state international agreements. This acquiescence could change as countries like China target U.S. states in an effort to work around strained relations with the U.S. national government, and as states become more assertive in resisting the national government’s foreign policies. In any event, the practice of state international agreements unapproved by Congress rests in part on a distinction between binding and nonbinding agreements that deserves greater scrutiny under both domestic and international law
