November 7, 2009
Hate Crimes and Thought CrimesSherry F. Colb (Cornell Law School) has a column on the topic of the new federal hate crimes legislation at Findlaw.
Upcoming and Recent Arguments Previewed and Recapped
- a preview of the upcoming arguments in the juvenile life without parole cases
- a recap of the argument in Wood v. Allen
- a recap of the argument in Pottawattamie County v. McGhee
Post-Booker SentencingEllen Podgor at White Collar Crime Prof discusses Looser Rules on Sentencing Stir Concerns about Equity, a Wall Street Journal article. Her conclusion: the looser rules actually make real equity more likely.
Gabel on Familial DNA
DNA represents the “gold standard” of evidence that solves crimes and obtains convictions. Law enforcement agencies increasingly turn to national and local DNA data-banks to generate possible suspects. These searches may “hit” upon data-bank samples that only partially match the DNA left at a crime scene. The value in a partial match is that it might identify a relative of the perpetrator. Some states have embraced this technique - familial DNA testing - as a harmless additive to traditional or routine investigatory methods, but at least one state has explicitly banned its use. This article examines the scientific, legal, and bioethical implications of familial DNA testing. It examines the scientific significance of obtaining a partial match, and questions whether the archetype for determining the existence of a family relationship lacks definition. It considers the legal problems posed by identifying and relying upon innocent people to investigate their family members, including infringements on privacy rights and violations of constitutional requirements. Finally, this article addresses the ethical implications of familial DNA investigations, the tension between resolving crimes and protecting bioinformation, and suggestions to balance the progress of science with the privacy of the person.
November 6, 2009
Clough on Corporate Criminal Complicity in Human Rights Abuses(Monash University - Faculty of Law) has posted Punishing the Parent: Corporate Criminal Complicity in Human Rights Abuses (Brooklyn Journal of International Law, Vol. 33, No. 3, p. 899) on SSRN. Here is the abstract:
The nature of corporate involvement in human rights abuses, coupled with the difficulty of securing prosecutions in the host jurisdiction, has focused attention on the potential liability of the parent corporation under the domestic laws of the home jurisdiction. Focusing on the common law jurisdictions of Australia, Canada, the United Kingdom, and the United States, this Article analyzes the application of domestic principles of complicity to extraterritorial conduct by corporations. In the context of MNCs, liability for the failure resides with the parent itself, rather than in the complex web of its subsidiaries. For example, the International Criminal Court Act of 2001 (U.K.) imposes liability for genocide, crimes against humanity, and war crimes, and applies extraterritorially to acts committed outside the jurisdiction by U.K. nationals or residents. Anvil NL became a wholly owned subsidiary of Anvil Mining Ltd., and its shares of Anvil NL were delisted from the Australian and Berlin Stock Exchanges. Prior to 1998, it appears that FCPA prosecutions primarily involved U.S. corporations operating directly in foreign countries. Such liability is justified not only because of the difficulty of pursuing offenders in the host jurisdiction, but because of the culpability of the parent corporation itself.
The Fourth Amendment, Email, and Computer SearchesThere is an interesting podcast on this topic at Legal Talk Network featuring Orin Kerr (George Washington University Law School), who mentions it in a post at The Volokh Conspiracy. In a separate post, Orin also notes that the Ninth Circuit has requested briefing on whether its recent "blockbuster computer search and seizure decision" in United States v. Comprehensive Drug Testing" should be reheard by the full Ninth Circuit (the so-called super en banc court).
Glazier on Combating Al Qaeda within the Law of War
David W. Glazier (Loyola Law School Los Angeles) has posted Playing by the Rules: Combating Al Qaeda within the Law of War (William & Mary Law Review, Vol. 51, Forthcoming) on SSRN. Here is the abstract:
Although the so-called "war on terror" has entered its seventh year, key legal issues governing the use of force and military detention remain largely unresolved. These questions survive the Bush administration as the United States continues to launch aerial strikes against al Qaeda and President Obama has not foreclosed use of military detention or trials even after Guantanamo is closed. Military victory is not possible, but good faith application of authority from the law of war can effectively complement traditional criminal law in combating the threat. Even if the Geneva Conventions do not formally apply to this conflict, there is a large body of customary international law, including many Geneva rules, that should. If the war is limited to those adversaries authorized by Congress, and the opposition is validly classified under the law of war, the military (but not the CIA) can legally target members of al Qaeda and detain them without the requirement for criminal trial. But the conditions of that detention and any trials must meet international standards, which they currently do not. Good faith application of law of war rules also offers better protections for civil liberties than currently proposed solutions such as national security courts offering less due process than regular federal trials. Such measures start down a slippery slope of compromising legal standards on the basis of expediency that can be avoided through the faithful application of existing international law.
Next Week's Criminal Law and Procedure Arguments
Description of issue is from ScotusWiki, which also has briefs and the opinion below:
Graham v. Florida (08-7412)—Whether the Eighth Amendment’s ban on cruel and unusual punishments prohibits the imprisonment of a juvenile for life without the possibility of parole as punishment for the juvenile’s commission of non-homicide.
Sullivan v. Florida (08-7621) — same basic issue as in Graham v. Florida; the Court, however, has not consolidated the cases for hearing or decision
November 5, 2009
"14 Charged With Insider Trading in Galleon Case"
The New York Times story begins as follows:
Federal prosecutors charged 14 money managers, lawyers and other investors on Thursday with trading on insider information, significantly expanding a wide-ranging, multiyear investigation that is sweeping through the secretive world of hedge funds.
In a series of criminal complaints, which are connected to charges filed last month against the hedge fund billionaire Raj Rajaratnam, prosecutors described a network that used prepaid cellphones and met in cars to avoid detection, and that was pierced in part through surveillance and secret recordings.
Moohr on Corporate Criminal Liability
Under federal law, corporations are vicariously liable for white-collar crimes when an agent of a firm commits a crime while acting within her authority for the benefit of the firm. This standard renders corporations vulnerable to criminal charges, leading to concerns about fairness and aggressive prosecutorial tactics. This essay suggests another reason for the exposure of firms to criminal indictment. The three-part system that encourages law-abiding business conduct is skewed toward criminal enforcement. First, congressional and judicial actions have made it difficult to sustain private civil suits that seek relief for securities fraud, and, second, regulatory enforcement has been weakened by inconsistent policies and inherent conflicts. Finally, the ambiguity and breadth of the federal fraud statutes facilitate charging agents in the first place – without providing guidance that would prevent unlawful conduct. Simply stated, the advantages of each piece of the enforcement system have been forfeited. To more effectively encourage law-abiding business practices, the balance among enforcement mechanisms should be restored. To that end, private suits should be reinstated, regulatory enforcement strengthened, and the federal fraud statutes reformed.
Parole System Faulted in Garrido Case
Chief among the criticisms is that parole officials did not find and identify Ms. Dugard despite visiting the home numerous times when she apparently lived in a backyard compound within sight of neighbors. Ms. Dugard was 11 when she was kidnapped in 1991.
The report says that Mr. Garrido “committed numerous parole violations and that the department failed to properly supervise Garrido and missed numerous opportunities to discover his victims.”
State parole officers regularly went to the house of Mr. Garrido and his wife, Nancy. Still, the report includes a litany of supervision shortcomings by the department, including a failure to supervise Mr. Garrido as a high-risk sex offender and a failure to use GPS information from his ankle monitoring device, which could have alerted agents that he was violating the terms of his parole and spending an inordinate amount of time in the backyard.
"Murderer with 'aggression genes' gets sentence cut "This interesting piece, noted by Steve Erickson at Crime and Consequences, appears at New Scientist, discussing the decision in an Italian case but exploring the arguments that the evidence should actually be considered an aggravating factor.
"The Deputy Who Helped Himself to the Defense Attorney’s Casefile"Orin Kerr at The Volokh Conspiracy has an interesting post, replete with video, about this bizarre case and the complications in finding a remedy.
"Justices, in Aftermath of 2 Murder Cases, Hear Claims of a Process Gone Wrong"Adam Liptak in the New York Times has coverage of yesterday's oral arguments.
Echazu and Garoupa on Corruption and Distortion of Law Enforcement Effort
Luciana Echazu (Clarkson University) and Nuno Garoupa (University of Illinois College of Law; pictured) have posted Corruption and the Distortion of Law Enforcement Effort American Law and Economics Review, 2010) on SSRN. Here is the abstract:
We consider the distortions that corruption generates in law enforcement. Corruption dilutes deterrence, and hence the government needs to adjust law enforcement activities appropriately. We argue that this distortion is not the only one taking place. A misalignment of goals between the government and the enforcers results in another set of agency costs by which activities that put enforcers in direct contact with criminals increase at the cost of other law enforcement activities. The paper discusses the implications of both distortions.