Katherine Y. Barnes

Measuring Racial Profiling

What if racial profiling were useful? Even, perhaps, very useful? Are the costs of racial profiling so significant that racial profiling should be banned? Courts and commentators do not ask these questions; indeed, they rarely, if ever, acknowledge that racial profiling may be useful. This paper explores what costs police would have to justify, and how they might do so in order to use racial profiling legally. Using race as a part of a profile of criminal has some efficiency value; it is not solely (or even at all) about racial animus. Race is a marker of criminal behavior; it would be miraculous if it where not. Height, weight, gender, hair style, ear piercings, all of these characteristics almost surely delineate some difference in the commission rate of at least one crime. This is, essentially, a mathematical truism: race and crime are not independent. Because race is “useful” when “useful” is defined as “information worth more than zero,” it is important to move beyond the initial question — is it useful — to the more important question — how useful is it? What do we give up in allowing or banning racial profiling? What are courts missing when they discuss racial profiling? This paper is an attempt to get at least some of the empirics correct regarding the direct costs and benefits of racial 1This project has been support by NSF Law & Social Science and Measurement, Methodology & Statistics Sections Grant no. 1024389. I would also like to acknowledge the assistance of Professor John Hobbins at the McGill Law Library, for kindly providing work space and access to materials in Summer 2010.

Rulemaking in the Shade: An Empirical Study of EPA’s Air Toxic Regulations

In administrative process sunlight may be the best disinfectant, but as Professor Strauss notes, the “candor and the flexibility necessary for collaboration or compromise are more likely to flourish in the shade.” This Study is designed to explore the engagement of interest groups over the entire life cycle of a rulemaking and to assess whether it is in fact in these shaded, or partly shaded phases where much of the regulatory work gets done. Specifically, we examine the air toxic emission standards set by EPA for over 100 major industries with respect to both participation and influence of interest groups at key points of the rulemaking life cycle - before the proposed rule is published; between notice and comment and the final rule; and after the final rule is published. The results reveal high levels of participation and stark imbalances among participating groups at each of these stages. At the pre-proposal stage, industry had an average of 84 informal communications with the EPA per rule; public interest groups had an average of 0.7 communications per rule. During the comment process, industry provided approximately 81% of the total comments; public interest groups provided 4%. Changes made to the final rule after notice and comment favored industry by a factor of 4 to 1 as compared to the changes benefitting the public interest. Post-final rule activity was considerable as well. Petitions and litigation occurred for 22% of the rules, with industry filings accounting for 2 times those filed by public interest groups. After promulgation of the rules, moreover, roughly 70% of the rules were revised and amended, with an average rate of over 4 revisions per rule for those that were revised at least once. These findings are consistent with other recent empirical research on the rulemaking process, but add to the evidence of extensive engagement outside of the reach of the APA as well as highlighting significant interest group imbalances at three discrete stages in the rulemaking process.