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The Prosecutor Vacancy Crisis
Full text linkThere is a prosecutor vacancy crisis in the United States. Prosecutors are quitting in droves and there are few applicants to replace them. In Houston and Los Angeles, more than 15% of prosecutor positions are open. In Detroit, the vacancy rate exceeds 20%. In Alameda, 25% of prosecutor positions are empty. And in Miami, a staggering 33% of prosecutor positions are unfilled. The situation is equally dire in many large and small counties across the nation.
Drawing on data and interviews from more than two-dozen district attorney’s offices, this Article documents how low salaries, massive caseloads, lack of remote work options, and crushing discovery burdens have caused an exodus from prosecutors’ offices. Worse yet, many young lawyers no longer perceive prosecution work as admirable public service. Following the murder of George Floyd, law students are more likely to believe that public defenders, rather than prosecutors, are on the side of justice.
Prosecutor vacancies are dangerous to public safety and, counter-intuitively, to criminal defendants, as well. Vacancies lead to junior prosecutors having massive caseloads that they cannot handle. In turn, busy prosecutors fail to dismiss weak cases, leaving innocent defendants to languish in jail. Vacancies also result in junior prosecutors being promoted to senior positions before they are ready. And vacancies cause Brady violations because busy offices fail to provide adequate training, and individual prosecutors lack the time to review their casefiles and recognize Brady material
Flattening the Curve: Why Amending the International Health Regulations Is the Common-Sense Solution to Future Pandemics
Full text linkThe COVID-19 pandemic presented an unprecedented challenge for the World Health Organization (WHO) and international community. The outbreak and ongoing pandemic prompted States to reassess the efficacy of the International Health Regulations (IHR). In November 2021, the World Health Assembly (WHA) decided to develop a new agreement to increase international pandemic preparedness. This paper analyzes the current gaps in the IHR to present a pragmatic approach wherein the WHA would amend rather than replace the IHR. It starts by examining the purpose and history of the IHR, including past revisions. It then addresses the constitutional framework of the IHR, and legal authority granted to the WHO to enact global health agreements. The paper analyzes specific articles of the IHR and their purported objectives to provide context for the IHR’s shortcomings. The paper argues that amendments are the pragmatic approach to strengthen the existing foundation laid down by the IHR. Specific amendments that prioritize improved detection and surveillance systems, greater multisectoral cooperation, and mitigation of resource scarcity will promote improved preparedness and prevent future outbreaks. The paper includes new language and substance for each proposed amendment that integrates with the existing IHR framework
Understanding Golf’s Civil War: An Antitrust Analysis and Discussion
Full text linkFor years, professional golf has been ruled by the PGA Tour. But in 2022, the PGA Tour’s monarchy started to crack when LIV Golf, a new Saudi-backed golf league, entered the scene and sued the PGA Tour for antitrust violations. Players and fans had to take sides: the legacy of the PGA Tour or the deep pockets of LIV Golf? The lawsuit resulted in a settlement between the entities, but the complaints exposed dealings engaged in by the PGA Tour that this Note argues are violations of the Sherman Act. Beyond illegality of the Tour’s acts, the dispute between LIV and the Tour reinvigorates what scholars have already discussed about the business practices and antitrust issues of professional sports entities. This Note applies previous scholarly discourse in this area to professional golf and examines what options could create meaningful change in the professional golf realm
Disclose by Law, Obfuscate by Strategy: A Corpus-Based Analysis of Patent Filings
Full text linkThe patent system encourages dissemination of technical information by granting inventors exclusive rights to their inventions in exchange for public disclosure of their technology. The American Inventors Protection Act (AIPA), enacted in 1999, advanced this goal by increasing the scope and speed of disclosure. Previously, filings were published only if and when a patent was granted, but under the AIPA most applications are published eighteen months after filing. The sum of those changes amplified a fundamental tradeoff between protection and exposure. Although patents offer protection, competitors can exploit disclosures by integrating the innovations into their own research and development efforts. We ask if firms responded to the AIPA by making their applications less understandable to offset its increased disclosure obligations.
We hypothesize that patent applicants muddy the water by using complex language. In other words, we expect firms to respond to the AIPA strategically—using obfuscatory language to mitigate the downside of disclosing technologies. Obfuscation hinders competitors’ efforts to assimilate disclosed innovations. To investigate our hypothesis, we employ tools from corpus linguistics to assess the readability of patent texts after implementation of the AIPA. Our analysis offers evidence that the AIPA’s increased publication requirements inadvertently encouraged applicants to obfuscate their disclosures with complex, convoluted language. Such strategic behaviors may hinder the patent system’s goal of disseminating technical information
Clark Memorandum: Fall 2024
No full textNo Room for Compromise: Religious Polarization in the United States A Banking Lawyer’s Perspective on the Kirtland Safety Society Anti-Banking Company Hope in Dark Times Becoming a Master of Your Thoughtshttps://digitalcommons.law.byu.edu/clarkmemo_gallery/1072/thumbnail.jp
Valuing ESG
Full text linkCorporate environmental, social, and governance (ESG) commitments promise to make capitalism better. Unfortunately, ESG has become a hotbed of hype and controversy. The core problem is that ESG mixes vague environmental and social goals with a profit maximization goal and does not provide a framework for resolving the conflicts that exist between them. The result is confusion that invites deception and cynicism. This Article proposes a mechanism for resolving conflicts between goals by translating them into the common language of money. Once nonpecuniary environmental or social goals are translated into dollar values, they can provide clear and actionable guidance for firms and investors, enabling ESG to fulfill its promise.
To achieve this, corporations and institutional investors that claim to be ESG-friendly should publicly commit to specific valuations for ESG issues. For example, a company or mutual fund concerned with both climate change and profit might commit to valuing a metric ton of carbon emissions at 100 for every ton of additional carbon emitted. A mutual fund would use the valuation when voting on climate-related governance issues or investment decisions. For example, the fund would back a shareholder resolution supporting lower corporate carbon emissions so long as the resolution would not reduce profits by more than 100. In effect, companies and investors would bid on their valuation of ESG impacts relative to ordinary profit maximization, sending clear and actionable signals on actual and desired behavior. By providing concrete standards and a sorting mechanism for making sense of competing goals, valuation would help realize the potential of ESG investing
