Issues

Black Americans have long faced discriminatory treatment while shopping in retail establishments, including, most notably, being subjected to increased surveillance, inconsistent pricing, and inferior customer service. Little attention, however, has been paid to other post-purchase aspects of retail transactions. Specifically, do Black Americans receive the same treatment as white customers when it comes to performing sellers’ formal policies or contracts? While it is understood that salespeople are often given discretion to deviate from standard form contracts, sometimes departing from the literal terms to satisfy consumers, there has been a notable absence of systematic exploration into how salespeople exercise this authority and whether racial disparities manifest in the exercise of such discretion. This Article reports on an original audit study that involved sending testers who were matched on all observable characteristics other than gender and race into downtown Chicago stores to return prepurchased items. All of the audited stores had official policies that required a receipt as a prerequisite to a return, but the testers did not present receipts for the items.

The findings revealed stark racial disparities: Black shoppers, both women and men, encountered more frequent denials and were less likely to be offered refunds than their white counterparts, with white women receiving the most favorable treatment. These disparities persisted and became even more pronounced after the testers asked to speak to management. Insights gleaned from novel interviews with store clerks suggest that these discrepancies stem from ingrained biases that associate race with social status and expected behavior.

In response, this Article outlines several recommendations that would reform the legal landscape to more robustly combat retail race discrimination in contractual performance. These include broadening the reach of existing legislation to explicitly outlaw racially discriminatory practices in the execution of seller contracts and incentivizing sellers to implement strategies that have been shown to reduce bias in other decision-making environments.

For the past century, Delaware’s constitution has provided that no more than a bare majority of judges on the state’s courts may hail from the same political party. Some scholars and jurists theorize that Delaware’s commitment to a politically balanced judiciary increases the state’s attractiveness to out-of-state corporations and adds value to Delaware-chartered firms. These claims echo a larger literature in law and the social sciences positing that ideological diversity improves decisional quality. Recently, a series of federal court decisions in the case of Adams v. Carney put these claims to the test. In December 2017, a federal district court held that Delaware’s partisan-balance regime violates the First Amendment’s freedom-of-association guarantee because it discriminates among judicial candidates based on party affiliation. In December 2020, the U.S. Supreme Court vacated the lower court decision and restored Delaware’s scheme. The Adams litigation—which generated a series of exogenous shocks to Delaware’s legal regime—enables assessment of the value of partisan balance. If a politically balanced judiciary adds value to Delaware-chartered corporations, then the share prices of Delaware firms should have declined in the wake of the December 2017 district court decision and risen in response to the December 2020 Supreme Court ruling.

This study examines how equity markets responded to key decisions in the Adams litigation. Applying a range of model specifications, we find that Delaware firms experienced negative abnormal returns on the district court decision date and positive abnormal returns on the Supreme Court ruling date, with these abnormal returns concentrated among small- and mid-sized firms. These findings—supplemented by results from other key dates in the Adams litigation—are broadly consistent with the theory that a politically balanced judiciary generally adds value to Delaware-chartered companies. Notably, though, we do not detect discernible stock price reactions to the Adams litigation among the largest publicly traded firms.

We conclude by considering the implications of our results for two larger debates in legal scholarship: the debate over partisan-balance requirements for federal courts and the debate over Delaware’s dominance in the interstate market for corporate charters. As for the former, our results provide the first revealed-preference evidence for the claim that relevant stakeholders assign positive value to partisan-balance requirements for adjudicative bodies—a finding that potentially bolsters the arguments of scholars and politicians who want to extend similar requirements to U.S. Supreme Court Justices. As for the latter, our results suggest that Delaware’s commitment to a politically balanced judiciary accounts for a nontrivial component of the so-called “Delaware effect”—the share price boost observed in some studies for firms that reincorporate in the state. In the interjurisdictional market for corporate charters, Delaware’s judicial partisan-balance requirements may provide the state with a competitive advantage over states that lack similar provisions.

While scholarship examining the relationship between Congress, federal agencies, and the judiciary reveals variation in the statutory details that affects administrative and judicial decision-making, few studies explore the extent to which congressional delegation decisions balance both the substantive and procedural independence of agencies against the possibility of the federal judiciary’s review of administrative action.

This Article enhances scholarly understanding of delegation by providing a qualitative, theoretical, and empirical account of the circumstances under which Congress manipulates federal agency exposure to the federal judiciary. Ironically, combined with statutory provisions dictating agency independence, increasing an agency’s exposure to unelected federal judges can increase administrative responsiveness to elected legislators.

Using a motivational case study of federal energy policy from the 93rd to 110th Congresses, this Article highlights how, during the legislative process, Congress’s members’ delegation decisions account for agency independence and administrative exposure to the courts. Based on the findings of this case study, the Article develops a new theoretical account of legislative choices over Executive Branch exposure to the federal judiciary. This Article then presents an empirical examination of significant legislation from the passage of the Administrative Procedure Act through 2016 to assess the factors influencing legislative choices regarding delegation, agency independence, and Executive Branch exposure to the judiciary.

In doing so, this Article makes several important contributions. First, by broadening scholarly discussions of agency design, delegation, and administrative responsiveness to elected officials, the Article illustrates how underappreciated factors—including political volatility, technical uncertainty, and administrative structure—influence the parameters under which Congress delegates. Along with agency independence, political coalitions strategically adjust the availability of judicial review to account for the practical realities of governance. Specifically, political coalitions increase administrative exposure to the courts as political volatility and the autonomy of agency leadership increase. Political coalitions decrease agency exposure to the courts as the complexity of the administrative policy arena increases and the availability of political review decreases.

Considered in its entirety, this Article suggests that legislative decisions regarding judicial exposure can enhance or diminish the effectiveness of other statutory and constitutional tools of democratic accountability, such as administrative procedures or oversight. Simply put, the level of administrative exposure to the judiciary has profound implications for the American separation of powers system of governance.

Who really decides what statutes say? Most Americans think that special interests play an outsized role in our lawmaking processes. Yet empirical studies have produced little evidence that special interests get everything, or even most of, what they ask for from Congress. This Article takes an innovative new approach to tackling the difficult question of how advocates influence legislation. It presents the first comprehensive empirical study of how advocates influence the law through amendments in the legislative process. The Article analyzes an original dataset of 2,137 witnesses and their testimony at referral hearings on 108 Indian-related bills in the 97th and 106th Congresses. The analysis identifies amendments as an important yet previously undocumented way in which advocates influence legislation. It uncovers a rarely observed relationship between legislative advocates and sitting members of Congress. Comparison of advocates’ testimony on bills to amendments proposed by members of Congress reveals similar and even identical language, providing compelling evidence that advocacy groups persuaded legislators to introduce amendments valued by the group. The analysis also demonstrates how advocate influence at the hearing stage of the legislative process frequently shapes the law by dramatically increasing the likelihood of legislative enactment. These findings reveal an important mechanism advocates can use to change the law. Further, they challenge prevailing narratives about power by demonstrating how underrepresented groups can leverage the legislative process in their law reform efforts.