Articles
Textualism in Practice
Anita S. Krishnakumar | PDF
Textualism has won the statutory interpretation wars. But despite this theoretical and methodological victory, textualism as practiced on the ground has proved less transformational than expected. Indeed, contrary to what textualist interpretive philosophy long has promised, the widespread embrace of textualism by judges on the ground has not resulted in any real clarity or predictability about the interpretive path—or even the specific interpretive tools—courts will invoke to construe a statute in a particular case. Part of the reason for this lack of predictability is that textualism as practiced often differs significantly from the approach that textualism as an interpretive philosophy advertises; and part of the reason is that textualist philosophy is sometimes in tension with itself. In light of textualism’s ascendance—and now dominance—on the modern Supreme Court, it is time for scholars and jurists to grapple with these theoretical tensions and points of divergence between textualist interpretive philosophy and textualism as practiced on the ground.
This Article provides the first empirical and doctrinal analysis of three places where modern textualist interpretive practice diverges—sometimes sharply—from textualist interpretive philosophy. Based on 637 cases decided during the Roberts Court’s first fifteen-and-a-half terms, the Article highlights three surprising textualist points of divergence. First, although textualist philosophy seeks to limit the universe of acceptable interpretive resources upon which judges rely, textualism in practice is decidedly pluralist, as a clear majority of the Court, including all of the Justices widely considered textualists, regularly references several interpretive tools that textualist interpretive philosophy rejects. Second, although textualist philosophy insists that statutory terms be given their date-of-enactment, or “original public,” meaning, textualism in practice regularly uses present-day sources to determine statutory meaning. Third, although textualist philosophy emphasizes the meaning that statutory terms have in everyday conversational speech, textualism in practice relies heavily on sophisticated legal doctrines and constructs. These findings hold true even if we focus exclusively on data from the Court’s most recent 2017–2021 Terms, during which the Court’s membership has skewed lopsidedly textualist.
After chronicling several divergences between textualist interpretive philosophy and textualist practice, the Article considers and rejects the possibility that such divergences can be chalked up to faint-hearted judicial application of textualism—and that the solution should be more disciplined adherence to textualist principles. Instead, the Article suggests that textualist interpretive philosophy may actually be inherently contradictory in ways that give rise to these interpretive divergences; for example, textualism’s commitment to stability may be in tension with its commitment to predictability and fair notice. In the end, the Article offers some suggestions for how textualist philosophy might evolve to both reconcile these internal contradictions and better account for how textualism actually is practiced on the ground.
The Social Benefits of Control
Emilie Aguirre | PDF
When firm founders want to increase access to capital, one traditional route has been to take the firm public. Most public firms allow equal voting rights for all shareholders, so by going public, founders and early insiders inevitably give up a certain amount of control over the firm. More recently, however, a governance structure known as multiclass shares has exploded in popularity. Multiclass share structures separate voting rights from economic rights, allowing insiders to retain control while still raising money on public markets. Because multiclass structures can allow insiders to extract private benefits at the expense of outside shareholders, they are frequently criticized by both scholars and commentators as threats to good governance. Yet this narrow focus on maximizing shareholder financial returns fails to consider a myriad of other factors motivating firm governance choices, especially for the growing number of firms pursuing objectives beyond profit.
This Article contributes to the scholarly literature on the efficacy of multiclass structures by adding more nuance and complexity to the traditional understanding. Specifically, it argues that multiclass structures can generate underappreciated and valuable social benefits of control. The social benefits of control accrue in two main ways. First, multiclass structures help solve a challenging private contracting problem among socially conscious firm insiders and outsiders. Second, they promote declining public markets by neutralizing a key reason why firms with objectives beyond profit may choose to stay private. These insights reveal that there are a range of benefits to multiclass structures that must be balanced with the costs traditionally highlighted by corporate law scholars.
Relocating Location Incentives
Brian Highsmith | PDF
In recent years, a growing share of state and local budgetary resources has been diverted to a small number of firms through multibillion-dollar location incentive megadeals, as represented by Amazon’s HQ2 search and Wisconsin’s Foxconn boondoggle. These companies have become adept at devising new mechanisms for extracting the public resources of local communities to secure a competition advantage over their market rivals. But legal scholarship has not considered the possibility that dominant firms’ incentive demands might implicate the statutory protections enacted to protect against unfair methods of competition and corporate dominance more broadly. This Article develops a historical, economic, and institutional case for using latent authority under the Federal Trade Commission Act to study the market consequences of inefficient incentive megadeals—and regulate certain anticompetitive practices that cause cognizable harms.
This Article uses location incentive megadeals to explore how federal regulation could help address a classic concern of state and local governance: structural corporate power over local communities. I demonstrate that the populist movement responsible for the enactment of our initial antimonopoly protections was substantially motivated by opposition to the lavish incentives demanded by private railroad companies, from competing towns, during the late nineteenth century. When Congress later strengthened those protections by creating the Federal Trade Commission in 1914, legislators were addressing harms understood to be created by unregulated interstate competition for mobile corporate tax location. Reviewing recent reporting and empirical findings, this Article suggests that contemporary megadeals create harms directly analogous to those of concern to past legislative drafters: to healthy product competition; to consumers of private and public goods; to labor market structure; and to democratic self-governance. Finally, this Article argues that federal market supervision offers various institutional advantages as compared to previous (unsuccessful) attempts to rein in this source of public resource misallocation—accommodating key policy considerations and overcoming the coordination challenges that prevent localities from acting on their own.
Note
Inside Outsider Art: Challenges and Opportunities for a Marginalized Genre
Lucas Lynn | PDF
Outsider art encompasses the work of artists, typically self-taught, who experience some form of marginalization and do not proactively participate in the mainstream art world. Adored in part for the biographies of the artists and in part for the quality of the art, the genre has become increasingly popular in secondary markets and museums over the last half century. However, buyers of outsider art still find it difficult to authenticate and attribute works. This Note examines the challenges inherent in outsider art and proposes three opportunities that can help address the challenges with authentication and provenance in outsider art while also providing deserved recognition, respect, and legitimization to outsider artists and their art.