Retail trading platforms increasingly incorporate "gamified" elements that encourage more frequent trading. These "gamified" elements include banners, nudges, badges, streaks, confetti animations, push notifications, and trade prompts. While these design choices help reduce barriers for new investors and have grown in popularity by providing easy, mobile-first access to financial markets, they also raise concerns about exploiting behavioral biases to increase the retail trading platforms' profits. This issue is especially pertinent under Payment for Order Flow (PFOF) structures, in which broker-dealers benefit from higher trade volumes rather than strictly focusing on providing best execution for their clients. To better educate retail investors of these risks, this Note proposes a disclosure-based framework that mandates that broker-dealers reveal the principal factors driving each recommendation or nudge. By relying on explainable AI methods- namely, approximated Shapley values-to highlight the variables steering trading prompts, regulators can empower investors to make more informed decisions without imposing blanket restrictions. While some challenges like protecting trade secrets, managing smaller-firm compliance costs, avoiding information overload, and targeted transparency, are likely to remain, this solution safeguards retail investors while maintaining an open, competitive marketplace.
Over the last few decades, uniform rules have come to govern only a fraction of cases in state courts. Instead, pleading standards vary by case type, discovery limits hinge on amount in controversy, and rules flex based on party type, representation status, and other factors. Quietly, tailored procedures have come to dominate state court civil litigation, impacting millions of cases each year-from consumer debt to personal injury to complex commercial. This Article analyzes the rise of tailored procedures in state courts and the implications for access to justice, separation of powers, and court legitimacy. Through a case study of Arizona's procedural evolution that draws on an original dataset of over 6,600 administrative and rulemaking orders, I trace how such tailoring developed, create a typology that can serve as a menu of design options for courts, and evaluate tailoring's tradeoffs. Without transsubstantivity as a rulemaking backstop in state courts, I also propose three new safeguards to ensure that tailored rules maximize benefits and minimize harms: proportional design, reason-giving, and iterative review. Tailoring, however, is about more than just gains and losses in fairness or accuracy. It is about a profound shift in who makes procedure and the goals it might achieve. As state courts have centralized authority and expanded their use of tailoring, they have displaced local rulemaking and narrowed judicial discretion. As rulemakers have grown more ambitious, they have expanded the values that procedure has traditionally advanced. These shifts raise important questions about who should make what procedure, the relationship between procedure and substance, and the role of courts in society.
This Article traces the emergence of text-centric theories of legal interpretation in the early nineteenth century amid an increasingly writing-based legal culture. While many scholars and judges associate textualism with the Founding period's enactment of written constitutions and innovation in the separation of powers, this Article argues that the first "textualist" turn in legal interpretation crystallized after the Founding and reflected transnational developments. Not until the 1830s through 1850s did certain jurists on both sides of the Atlantic elaborate interpretive theories predicated on understanding a written law as an ordinary linguistic communication, as opposed to being in part declaratory of unwritten principles. This new emphasis on the enacted text reflected the increasingly writing-based legal culture of the early nineteenth century enabled by the industrial revolution in print and communication technologies. Amid this technological change, old textualists believed they were bringing the equivalent of modern steam power to legal interpretation. Indeed, it was their work from the 1830s through 1850s, not the Founding, that Justice Scalia cited as muses for his project to revive a text-centric "science" of legal interpretation. Scalia's new textualism, however, differed from old textualism. New textualism emphasizes the public legibility of the enacted text and how that public legibility operates to constrain judicial discretion. Old textualism, by contrast, understood law as a largely technical language and instead promoted a vision of legal interpretation that advanced public ends through non-public means. Old textualists ultimately sought to claim interpretation as the expertise of judges and to reassure skeptics that judges could exercise this expertise objectively-laying groundwork for the rise of judicial supremacy that would follow.
Election administration in the United States is fragmented. Instead of having one uniform system, each state governs elections under distinct rules and hierarchies. Yet, one feature remains consistent among the fifty systems: Each is led by a "chief election official." Though some states rely on boards, most vest this authority in a single person---what this Article calls a "unitary chief election official." The unitary chief election official wields immense power. They enjoy unilateral authority to render decisions affecting voter registration, voting equipment, access to voting, ballot access, ballot measures, election counting and certification, and election official training, among other things. What is seemingly a procedural office can accordingly be used to impact substantive electoral outcomes. Because of this, subversive partisan actors have made increasing attempts over the years to co-opt the position, viewing it as a means to legally sway elections in their party's favor. Despite their significance, unitary chief election officials remain relatively underdiscussed in the literature. Questions remain about the precise extent of their authority, as well as what mechanisms exist to ensure that abusive officials can be held to account. This Article therefore makes a first, detailed attempt to answer these questions. To begin, the Article provides a descriptive account of the breadth of powers that the average unitary chief election official enjoys. It draws upon the election codes of eleven states to do this. Next, the Article considers how to best construct an accountability regime that insulates the office from partisan manipulation. Through the lens of democracy theory, the Article concludes that we should deemphasize electoral accountability, as truly neutral chief election officials must answer to democratic principles rather than popular whims. Furthermore, we should treat ex-post forms of accountability, such as lawsuits, as secondary fail-safe options rather than as primary ones. On the other hand, we should channel more resources to ex-ante legal and internal modes of accountability. By reframing accountability for unitary chief election officials, this Article offers a path to shielding the office from undue partisan capture and, in turn, strengthening the democratic process.
