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Prosecutorial Data Transparency and Data Justice
Get PDFThe U.S. criminal legal system is notoriously racialized. Though Black and Latinx people make up less than 30% of U.S. residents, they constitute more than 50% of the nearly two million people currently in U.S. prisons and jails. For decades, research has indicated that one group of decision-makers has had an outsized influence on these numbers: prosecutors. From whom to charge to what sentences to recommend, no actor plays a greater role in determining who goes to prison in this country. Highly subjective and lacking in formal guidance and accountability, prosecutorial decisions are especially vulnerable to racial bias. They are also cloaked in secrecy. Data about how and why prosecutors make decisions often does not exist or is shielded from public view. As a result, it has been nearly impossible to determine the extent to which prosecutors’ decisions contribute to racial disproportionality in the criminal legal process, let alone whether such decisions are the product of racial bias.
This Essay argues that prosecutors’ offices must collect, maintain, and publish standardized data on the bases of their charges, declinations, plea offers, and resolutions if we are to ever understand and address vectors of racial bias in the criminal legal system. Contextualizing this “call for data” within two case studies—one on the racialized impact of felony murder and accomplice liability murder laws and the other on the California Racial Justice Act—we demonstrate how prosecutorial data transparency would enable researchers, advocates, and policymakers to better identify and remediate racial bias in decision-making. Data transparency would also promote prosecutorial accountability both internally and externally.
Legislative efforts to implement data transparency must address privacy and surveillance concerns, especially since prosecutorial data transparency would expand a carceral source of information. At the same time, the consequences of data opacity are already shaping case outcomes. In this way, data transparency provides one remedy for currently unchecked systems, and serves as a step towards data justice
Environmental Justice as Housing Justice: HUD, Land Use, and the Case for the Fair Housing Act’s Application to Discriminatory Siting Claims
Get PDFReconceptualizing Background Principles in Takings Law
Get PDFBoth libertarians and progressives rejoiced in the result reached by the Supreme Court in the 2023 matter of Tyler v. Hennepin County. This Article asserts that such unified celebration has overshadowed the extent to which the Supreme Court’s reasoning calls into question even our most foundational assumptions about the meaning of property and the takings protections the Constitution affords to it. Followed to its literal end, Tyler remarkably suggests that owners may well need to ground their expectations in the background principles of property laws endorsed by a majority of states rather than in those underpinning the laws of their own state.
Suspicious that the Court intended such a revolutionary upheaval of the state variations that have characterized our federalist system for more than two centuries, the Article contends that Tyler is better interpreted as an epic failure in judicial transparency: The opinion reflects a sly reticence to acknowledge the reality that resolving competing claims to property demands moral judgment regarding the background principles of property law. In following this deceptive course, Tyler invites a race to legislative homogeneity and erects a dangerous barrier to states’ abilities to innovate in the face of evolving social, economic, and environmental conditions
Green Gatekeepers
Get PDFProducts are routinely labeled “carbon neutral,” “recycled,” “biodegradable,” “ocean-friendly,” and “sustainable.” Bonds are marketed as “green” and mutual funds as “ESG,” while firms may pledge to become “net zero.” But are statements concerning environmental qualities reliable? It is often hard for consumers and investors to tell. Environmental qualities tend to have credence attributes; they cannot be verified even after consumption. Green gatekeepers constitute an increasingly important response to this problem. Occasionally required by law but more often enlisted voluntarily by firms, green gatekeepers certify claims made about the green qualities of products or firms, promising to significantly mitigate information asymmetries between firms and certification users.
After distinguishing green gatekeepers from highly reputation-sensitive traditional gatekeepers in financial markets, we argue that green gatekeepers face weaker reputational constraints than traditional ones. Consequently, they are more likely to issue inaccurate certifications. We hand-code data on over 450 green gatekeepers, and we show that many of these gatekeepers are opaque, as in many instances they do not even disclose the standards they follow. We then propose a framework for regulation based on a classification that allows us, first, to identify which green gatekeepers are unlikely to be adequately constrained by reputational mechanisms and, second, to discern instances in which policymakers might be able to craft appropriate regulatory responses. From this framework, we derive several policy strategies and explore how they may apply to a sample of prominent green gatekeepers
Accounting for the Unaccountable: Does the Holding Foreign Companies Accountable Act Deter Chinese Companies?
Get PDFThe Holding Foreign Companies Accountable Act (“HFCAA” or “the Act”) threatens to prohibit trading in Chinese companies listed in the United States if the Public Certified Accounting Board (“PCAOB”) is unable to oversee their respective Chinese auditors. By assessing the limits of protection the HFCAA offers U.S. investors, this Note argues that the statute’s more fundamental objective is to deter Chinese companies from listing in the United States. Hence, this Note asks whether the HFCAA deters or will deter Chinese companies from listing or remaining listed in the United States. To answer this, this Note examines data collected by the Author on China-based company listings to determine the percentage of China-based company listings on U.S. exchanges over Chinese domestic listings from 2010 to 2023. The results indicate that a higher proportion of Chinese firms have opted to list their stocks domestically since the HFCAA’s passage. Accordingly, the HFCAA has the consequence of benefitting Chinese and Hong Kong exchanges while incentivizing Chinese regulators to increase their control over Chinese companies’ listing destinations. Given recent developments, such as the PCAOB receiving full access to inspect Chinese auditors, an evaluation of the deterrent force of the HFCAA is both timely and provides insight into the ramifications of the HFCAA that will be of interest for U.S. investors and policymakers
Sound Marks
Get PDFA lion roars just before a film rolls. A doughboy giggles. A giant green man laughs a hearty, “Ho, Ho, Ho.” These iconic sounds are all federally registered as trademarks. They identify specific brands and distinguish their products and services from the competition. Human brains treat sounds like these as categorization tools and cognitive shortcuts--ideal trademark symbols. But what about the sounds your favorite toys or electronic devices make? Or those made by a fictional character in the latest blockbuster? This Article tackles these issues and others. We push back against the widely-held belief that all unconventional trademarks--product designs, colors, scents, flavors, and sounds--are conceptually similar and collectively less likely to receive trademark protection. First, we review scientific literature on how humans process sound. Next, we explain how trademark law sorts sounds compared to other unconventional symbols in determining whether they may be protected as trademarks. Third, we empirically analyze the prosecution of sound marks before the United States Patent and Trademark Office over the past four decades, showing how different categories of sound mark applications fared in the federal registration process. Contrary to the common assumption that all unconventional marks face similar barriers to publication and registration, sound mark applications are much more likely to be successful than those for other unconventional marks--approaching the success rates for word mark applications. At the same time, sound marks are not a homogeneous category. They are a large, varied set. Sometimes categories of sound marks succeed with the high frequency typical of word marks, but others must overcome the more exacting standards of product design trade dress. After exploring reasons for this difference and other dynamics revealed in our empirical research, we conclude with recommendations for scholars, practitioners, and policymakers interested in the untapped power of sound marks