Volume 2021, No. 1

PDF link Table of Contents


PDF link Appellate Courts and Civil Juries

by Adam N. Steinman

In federal civil litigation, decision-making power is shared by juries, trial courts, and appellate courts. This Article examines an unresolved tension in the different doctrines that allocate authority among these institutions, one that has led to confusion surrounding the relationship between appellate courts and civil juries. At base, the current uncertainty stems from a longstanding lack of clarity regarding the distinction between matters of law and matters of fact. The high-stakes Oracle-Google litigation—which is now before the Supreme Court—exemplifies this. In that case, the Federal Circuit reasoned that an appellate court may assert de novo review over a jury’s verdict simply by characterizing a particular issue as legal rather than factual. But this approach misperceives the approach demanded by Rule 50 of the Federal Rules of Civil Procedure, which permits judicial override of a jury’s verdict only when “a reasonable jury would not have a legally sufficient evidentiary basis” to reach such a verdict.

Rule 50’s reasonable-jury standard does not permit de novo review of a jury’s verdict on a particular issue. Rather, it requires deference to the jury’s conclusion on that issue unless the reviewing court can explain why principles of substantive law or other aspects of the trial record render that verdict unreasonable. This deferential standard of review faithfully implements the text and structure of the Federal Rules and respects the jury’s role in our federal system. Yet, it also preserves appellate courts’ ability to provide meaningful clarification that will guide future decisionmakers.

PDF link Financing Minority Entrepreneurship

by Carlos Berdejó

Racial disparities pervade America’s socioeconomic fabric: minorities lag in educational attainment, employment, income, and wealth. Minorities are also underrepresented in the entrepreneurial space. For example, although minorities account for thirty-eight percent of the population, they own just nineteen percent of businesses. Despite numerous initiatives to promote minority business ownership, racial disparities in entrepreneurship have been stubbornly persistent over time.

This Article analyzes one of the major barriers that minorities face in undertaking entrepreneurial ventures. Informational asymmetries are especially pronounced when entrepreneurs attempt to raise money for their nascent businesses. Traditionally, social networks have offered an effective way to address the informational asymmetries that potential investors face when evaluating startup investments. Most minority entrepreneurs, however, lack access to these kinds of helpful social networks.

Recognizing the links between startup financing, information asymmetry, and social networks offers an analytic framework that can explain why minority entrepreneurs struggle in financing their businesses. This framework also suggests why current programs designed to address racial disparities in entrepreneurship have failed and offers guidance for new kinds of programs that are more likely to succeed in facilitating the financing of minority-owned businesses.

PDF link Gerrymandered by Definition: The Distortion of “Traditional” Districting Criteria and a Proposal for Their Empirical Redefinition

by Yunsieg P. Kim & Jowei Chen

What are “traditional” districting criteria? The meaning of that term is critical to curbing abusive districting practices because adherence to traditional criteria grants districting plans a prima facie impression of constitutionality and serves as a strong defense to racial gerrymandering claims. Yet, the Supreme Court has never intelligibly defined “traditional” districting criteria or its indicative qualities. Exploiting this silence, various actors are attempting to define that term in service of their own interests, usually at the expense of the public’s. For example, legislatures pushing redistricting plans that would advantage certain parties or incumbents claim that those districting goals are “traditional”—and therefore must be judicially protected—by relying on anecdotal examples of a state having used them.

This Article proposes a definition of “traditional” districting criteria that would both reduce such abuse and adhere to a commonly understood meaning of that word: widely accepted as standard practice. Under this alternative, which we call the empirical definition, a criterion is “traditional” only if a majority of states require or allow it and fewer than a quarter prohibit it in state constitutions, statutes, or legislative guidelines. According to the empirical definition and our database of the fifty states’ redistricting laws, compactness, contiguity, equal population, and preserving county and city boundaries are traditional criteria. Among others, partisan advantage, incumbent protection, and preserving communities of interest are nontraditional. The empirical definition would not only curb abusive districting but also reduce the influence of undesirable judicial activism by binding judges’ discretion to an objectively discernible definition of “traditional” criteria.

Constitutional theory also validates the empirical definition. Responding to concerns of judicial legislation, we argue that the empirical definition merely defines a central element of redistricting law—one that the Supreme Court has failed to specifically define—according to the public will and the Court’s requirement of traditionality. The empirical definition also advances a constitutional principle that courts purport to, but often do not, follow: redistricting must not unduly discriminate against any candidate. In the status quo, courts would uphold discriminatory criteria such as incumbent protection if they are applied consistently to all electoral districts in a state. Moreover, the courts’ status-quo “consistent application” approach would contradict their own precedents by incorrectly deeming certain criteria such as the contiguity principle to be nontraditional. The empirical definition would neither commit such self-contradiction nor condone abusive redistricting on the condition that everyone suffer from it.

PDF link Transforming the Progressive Prosecutor Movement

by Darcy Covert

It is a near universally accepted principle that prosecutors are the most powerful actors in the criminal system. In response, a new movement has emerged: its proponents argue that, by electing progressive district attorneys, we can use the power of prosecutors to end mass incarceration and bring fairness to the criminal system without changing a single law. They propose to accomplish these goals primarily by declining to prosecute certain low-level crimes, expanding diversion programs, and replacing hardline assistants with reform-minded outsiders. Academics, activists, presidential candidates, and even a Supreme Court Justice have endorsed this movement as the key to change. With little sustained scrutiny of this development, this Article takes the progressive prosecutor movement’s objectives as they are and asks whether, as currently framed, it is likely to achieve them. The conclusion is simple: no.

This movement acknowledges the “breathtaking” power that prosecutors yield, then asks its candidates to use that power for good and trusts them to do so. This Article offers a more efficacious prescription: if you are a prosecutor truly committed to transforming the criminal system, relinquish your power. Do not trade the rhetorical appeal of being tough on violent crime for political capital to spend on lenience for those who commit low-level offenses. Advocate for the reallocation of funds from prosecutors’ offices—rather than the expansion of diversion programs—to social services to keep the mentally ill, substance-addicted, and poor out of the criminal system. Rather than hoping to prevent wrongful convictions and over-punitiveness by changing who works in your office, lobby for a stronger indigent defense system and more external limits on prosecutorial power. To combat racial inequities in the criminal system, support efforts to strengthen defendants’ equal protection rights, instead of simply publishing statistics. Through these shifts, we can harness this moment where criminal justice reform tops the national agenda and implement truly transformative change.