This Article seeks to examine judicial opposition to New York’s 2020 criminal justice reforms in the context of existing scholarship on judicial organizational culture to understand why judicial obstruction occurs and how it can be addressed. New York’s 2020 criminal legal reforms sought to reduce pretrial detention and to provide greater access to discovery for the defense by curtailing judicial discretion to set bail and judicial power to excuse prosecutorial discovery delays. But judges opposed the law both surreptitiously and openly through defiant opinions, administrative adjustments, and routine court actions that undercut the reforms’ intended effects. Scholars such as Malcolm Feeley, Brian Ostrom, and Roger Hanson have written about how the informal organizational culture of a court system can be an impediment to reforms. Their analysis applies to New York’s 2020 reforms and provides insight into why this specific resistance occurred and how it can be addressed. The judiciary was included in planning and discussing the 2020 reforms and the reforms sought to remove judicial discretion in the matters of bail and discovery. Yet when it came time to implement the change, judges used other powers to avoid releasing individuals and to avoid sanctioning prosecutors. This is at least partially due to New York’s judicial appointment scheme which makes the judiciary sensitive to structural narratives concerning public safety and court leniency. Although these reforms were democratic and popular, judges were not sufficiently incentivized to properly implement the changes. If reforms are to succeed, the popular and political will to pass the reforms must extend beyond the passage of the law and must also create mechanisms to scrutinize, guide, and support the judiciary’s implementation of the law.
In a new era of computational legal scholarship, computational tools exist with the capacity to quickly and efficiently reveal hidden inequalities in the criminal legal system. Technically, laws exist that legally entitle the public to the requisite court records. However, the opaque bureaucracy of courts prevents us from connecting the public to documents they have a right to access. We exemplify this legal ethical problem by investigating areas of law where codified protections against inequalities exist and where computational tools could help us understand if those protections are being enforced. In general, the computational requirements of such projects needn’t be complex, making them even more attractive as solutions for auditing legal system processes. Using the backdrop of a national audit of public records policies to retrieve criminal jury trial transcripts, we establish the impossibility of securing the public records needed to quantify the illegal use of racially motivated peremptory strikes. We argue that the lack of opacity or availability of these policies serve as a bottleneck to the relatively simple computational process of quantifying previously unknown language and events in criminal jury trials. This Article considers the ethical implications of the lack of access to records that are legally public and considers how this lack of access to records becomes an access to justice problem.
Courts and scholars long have distinguished the wrongdoing component of criminal liability from the culpability component. In the old days, wrongdoing was thought to be crime’s physical, objective component— the “evil-doing hand.” Culpability, by contrast, was the mental, subjective component—the “evil-meaning mind.” Nowadays, most scholars agree with Holmes that even the wrongdoing component requires proof of the actor’s mental state. If the wrongdoing component requires proof of the actor’s mental state, though, what’s the point of the culpability requirement? For now, the dominant answer appears to be that the culpability requirement is a concession to human weakness. In this Article, I will develop a different view. I will argue that the culpability requirement is less a concession to human weakness than to the varieties of human rationality. Building on insights by philosopher Michael Bratman and others, I will argue that rationality can take at least two fundamentally different forms. The wrongdoing requirement is concerned only with conduct’s time-slice rationality—with the act’s downstream risks and utilities as measured from the moment of the act. Conduct that isn’t time- slice rational, however, still can embody a second kind of rationality, namely, temporally extended rationality. This second variety of rationality is present, for example, when an actor’s conduct is attributable to desirable habits of thinking, feeling, or behaving. The culpability requirement is best understood as addressed to this second kind of rationality. It absolves just those actors whose conduct, though wrongful, nevertheless is a product of desirable habits.
Section 1983 of the Civil Rights Act provides a means for plaintiffs whose civil rights have been violated by government officials to sue for monetary compensation. However, the doctrine of qualified immunity hampers a plaintiff’s chances of success by blocking cases from going to trial and preventing government entities from paying monetary judgments on “insubstantial cases.” State-created danger doctrine is a judicially created exception that can overcome qualified immunity when a government official has caused or contributed to a danger that resulted in harm to that individual. The purpose of this doctrine is to hold officials accountable who were more than negligent. Enforcing this accountability is especially important when those officials operate within the realm of the criminal legal system. Police officers and law enforcement officials are in a position to create more harm than other government officials as they have state- sanctioned authority and potential access to weapons. Moreover, creating accountability through the exception likely would incentivize the officers to act with more care in the future. This Comment examines the state-created danger doctrine applied to cases where a government official’s decisions have resulted in the suicide of an individual. In cases of suicide, this analysis reveals that plaintiffs have failed to succeed even when the actions of government officials have seemingly surpassed negligence. These cases often fail because courts interpret the decisions of government officials to be inactions rather than actions. Courts find that the threat of suicide has always existed, regardless of decisions by officials that might have exacerbated this risk. By not characterizing these decisions as actions, the courts allow qualified immunity to block liability. This Comment proposes an innovative solution: a test that reinterprets the language of DeShaney, the originator of the doctrine, to interpret “actions” to include instances where a government official closed off and later reopened the harm to that individual through their decisions. This Comment will then apply this test to the fact patterns of leading suicide-related cases and those involving law enforcement officials to show how it results in more successes for plaintiffs and more consistent results overall. The Comment concludes that enforcing accountability in this sphere will better protect the public from the officials, operating in the law enforcement or general governmental sphere, who have endangered them by behaving in a way that surpasses negligence.
Criminalizing ESG: A Framework to Hold Corporations Accountable for Incorrect ESG Disclosures
Investors are increasingly interested in corporate environmental, social, and governance (“ESG”) data, so the SEC has faced pressure to create a mandated ESG disclosure regime. The Commission has begun exploring ESG disclosures, including creating a dedicated task force and opening a public comment process. But, if the SEC wants to require corporations to provide investors with meaningful ESG data, it must be able to hold corporations civilly and criminally liable for providing false information—which hinges on ESG statements being material. This Comment analyzes what types of ESG data would likely be found material under current laws. After applying this information, this Comment concludes with various ways the SEC could utilize the materiality analysis to create a functional, standardized disclosure regime. This recommended framework would benefit investors by providing key ESG information while ensuring that the SEC and DOJ could attach liability to any incorrect and fraudulent data.