Sunday, June 26, 2005

Extraterritorial Jurisdiction and Social Harm

The indefatigable Ellen Podgor published an article in the McGeorge Law Review entitled "A New Dimension to the Prosecution of White Collar Crime: Enforcing Extraterritorial Social Harms."  The article considers recent prosecutions in which the victim of the criminal conduct was a foreign government:

David McNab and David Pasquantino went were sentenced to prison for very  different crimes, but in both cases the laws of another country  served as a basis for the United States prosecutions. This  Article examines and analyzes the McNab and Pasquantino cases,  and in this process considers the issues faced when a  prosecution is premised on another country's laws. For example,  a key issue in the McNab case was whether the United States correctly interpreted Honduran law. In Pasquantino, the Court  struggled with the use of a generic federal statute, wire fraud,  to prosecute conduct that violates the revenue laws of another  country.

A question explored in this Article is whether a United States  prosecution should be allowed when the supposed harm caused by  the criminal conduct is predominantly a harm to another country.  This Article recommends that extraterritorial prosecutions,  including those in the United States that use foreign law, need  to give more recognition to the location of the social harm.

The article is available on SSRN here.  (ph)

Addendum - Article is being udated on SSRN continually and still is in draft form,   Comments and corrections are welcomed.  (esp)

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