September 25, 2009
Hasnas - One Hundred Years of Corporate Criminal Liability
John Hasnas, The Centenary of a Mistake: One Hundred Years of Corporate Criminal Liability, forthcoming American Criminal Law Review - SSRN Abstract -
This article argues that there is no justification for corporate criminal liability. First of all, corporations are not moral agents capable of morally praise- or blameworthy action, and hence are not properly subject to punishment. Secondly, criminal punishment of corporations is inappropriate because 1) it advances none of the legitimate purposes of punishment, 2) it creates an unacceptable risk of prosecutorial error or abuse, and 3) it is not necessary to address a public harm. The only purpose served by threatening corporations with criminal punishment is to shift the balance in power between the prosecution and defense in white collar criminal cases radically in favor of the prosecution. However, this is inconsistent with the inherent liberal bias of the criminal law that embodies the normative assessment that an unrestrained government is a greater danger to citizens’ well-being than any number of individual criminals. Corporate criminal liability cannot be theoretically justified because it is directly violative of the theoretical structure of Anglo-American criminal law.
September 24, 2009
In the News & Around the Blogosphere
Nick Akerman, National L J,Will the justices rule on the Computer Fraud and Abuse Act? -Two recent cases raise the prospect that the Court will eventually interpret its "without authorization" language.
Baer - Governing Corporate Compliance
Miriam H. Baer, Governing Corporate Compliance, forthcoming Boston College Law Review - SSRN abstract -
In light of the financial meltdown of 2008, it is reasonable to question whether the prior decade’s emphasis on corporate compliance - the internal programs that corporations adopt in order to educate employees, improve ethical norms, and detect and prevent violations of law - has been fruitful. This Article contends that the key problem with compliance is that we regulate it through an adversarial system that pits federal prosecutors against corporate defense counsel, fueling distrust between corporate entities and the government, and between the corporate employees and the internal monitors tasked with ensuring compliance. Despite this adversarial atmosphere, a number of scholars have suggested that corporate compliance is an example of a more collaborative regulatory approach known as “New Governance.” This Article challenges that notion, arguing that the government’s adversarial stance all but eliminates the experimental and collaborative approach championed by the New Governance movement. The Article further concludes that a New Governance model of compliance regulation is unlikely to take hold. Nevertheless, policymakers should consider New Governance’s administrative stance in lieu of the more punitive, “war-driven” approach that adjudication usually encourages.
September 23, 2009
Ben Kuehne Case Heard in the 11th Circuit
David Oscar Markus (Southern District Florida Blog) reports on the oral argument in the Ben Kuehne case in the 11th Circuit here. What is most amazing here is that the government was appealing the decision of the lower court. For background see here. The statute provides that the term monetary transaction "does not include any transaction necessary to preserve a person's right to representation as guaranteed by the sixth amendment to the Constitution." Should we really be spending tax resources on a case like this?
September 22, 2009
Vanderbilt Criminal Justice Program
Vanderbilt University Law School now has a Criminal Justice Program, directed by Professor Christopher Slobogin. The Program sponsored its first Roundtable on September 11 & 12 of this year. Participants included Douglas Berman (Ohio State), Stephanos Bibas (Pennsylvania), Dan Kahan (Yale), Tracey Meares (Yale), Joan Petersilia (Stanford), Kevin Reitz (Minnesota), Daniel Richman (Columbia), David Sklansky (Berkeley), Kate Stith (Yale), Robert Weisberg (Stanford). Also participating were members of Vanderbilt’s criminal justice faculty, including Slobogin, Nancy King, Ed Rubin, Nita Farahany, Terry Maroney, Robert Mikos, Alistair Newbern (Director, Appellate Litigation Clinic), Yolanda Redero (Director, Domestic Violence Clinic) and Susan Kay (Director, Criminal Clinic).
Six papers were introduced by discussants, followed by comments from the paper’s author and reaction by the rest of the participants. The featured papers were Tracey Meares & Bernard Harcourt, Randomization and the Fourth Amendment (discussant: Slobogin); David Sklansky, Hearsay’s Last Hurrah (discussant: Richman); Dan Kahan, Who Perceives What, and Why, in “Acquaintance Rape” Cases? An Experimental Investigation of Culture, Cognition, and Consent (discussant: Weisberg); Doug Berman, Can Checks and Balances, Penumbras and Footnote 4 Improve Eighth Amendment Jurisprudence (discussant: Mikos); Stephanos Bibas, Alternatives to Imprisonment (discussant: Stith); Kevin Reitz , The Illusion of Proportionality: Desert and Repeat Offenders (discussant: King).
On January 29 and 30, 2010, Vanderbilt’s Criminal Justice Program will be sponsoring a Roundtable for faculty who are early in their careers. In addition to Vanderbilt’s criminal justice faculty, participants will include Laura Appelman (Willamette), Josh Bowers (Virginia), Eve Brensike (Michigan), Samuel Buell (Washington University), Bennett Capers (Hofstra), Roger Fairfax (George Washington), Barbara Fedders (North Carolina), Lea Johnston (Florida), Erin Murphy (Berkeley), James J. Prescott (Michigan), and Alice Ristroph (Seton Hall).
Other projects, past and future, of Vanderbilt’s Criminal Justice Program include initiation last March of a Juvenile Justice Colloquium, composed of academics, practitioners and government officials from the Nashville area, and partial sponsorship of a visit this November by the United States Court of Appeals for the Armed Forces, which will hear oral arguments at the school in a criminal case involving a privilege issue. Additionally, this spring four members of the Program, Farahany, King, Mikos and Slobogin, will teach a short course on “Sentencing, Corrections, and Punishment,” which will cover theories of criminal punishment, the relationship between sentencing and actual harms, guidelines sentencing, collateral consequences of convictions (e.g. deportation, disenfranchisement, and forfeiture), probation, state regulation of incarceration (e.g., good-time credits, supervised release, parole, mandatory and discretionary release sentencing systems), and innovations in punishment (e.g. preventive detention, sexual predator statutes, "dangerous offender" statutes, notification, monitoring, mental health courts, drug courts, habitual offender statutes, shaming penalties). One goal of the course is to develop materials that might be used in a sentencing component to the first year criminal law course, on the theory that a grasp of the nature and scope criminal sanctions and their alternatives is crucial to understanding the theory and current practice of criminal law.
It is good to see another press article warning of the need to focus on Identity Theft. See Nirvi Shah, Miami Herald, Identity theft growing, getting harder to stop DOJ here has taken a positive step with respect to educating on this crime, and developed a website that provides information such as how to protect yourself from being a victim of identity theft and what to do if you become a victim.
But more is clearly needed. With the increased use of computers, and with the downturn in the economy - identity theft is ripe for growth. As noted by the FBI, it even shows up in the mortgage fraud area. See here
Recognition needs to be given to the fact that computer crimes are difficult to investigate and prove. More money and resources need to be focused on this problem and specifically earmarked for this type of criminality. This is not a place for government shortcuts that merely add new legislation or diminish individual rights in an effort to solve the problem. Instead of increasing sentencing - just prosecute the individuals who are committing the crimes. It's an area that necessitates hard police work to find the perpetrators and proceed with prosecutions.
September 20, 2009
In the News & Around the Blogosphere
Tim Eberly, AJC, Gwinnett D.A. seeks special grand jury for county land deals
Dan Levine, The Recorder, law.com, Rare Pharmaceutical Fraud Trial Under Way in San Francisco (hat tip to Tiffany Joslyn)
Fried, Frank, Harris, Shriver & Jacobson, Civil False Claims Acts: D.C. District Court Decision Limits Retroactive Effect of FERA Amendment to Pending "Claims," Not Pending Cases
Tom Fowler, Houston Chronicle, How case against BP traders went wrong
Michael Cooper, NYTimes, On the Lookout for Stimulus Fraud
Daniel Newhauser, BLT Blog, Former Justice Official Takes the Fifth
Sheri Qualters, National LJ, One-third of companies report no Foreign Corrupt Practices Act compliance programs
Mike Scarcella, BLT Blog,Film Producers Found Guilty in FCPA Bribery Case
Brenda Sapino Jeffreys, Texas Lawyer, law.com, Federal Public Defender's Office Now Represents R. Allen Stanford in Criminal Case
Neil A. Lewis, NYTimes, Justice Dept. Investigates Ex-Official’s Ties to Shell
Zachery Kouwe, NYTimes,Judge Rejects Settlement Over Merrill Bonuses
Michael Pollick, Sarasota Herald, Has the Gulf Coast become a Ponzi haven?
Zachery Kouwe, NYTimes, Judge Rejects Settlement Over Merrill Bonuses
ABA - Second Annual Sentencing Advocacy, Practice and Reform Institute - November 6, Washington, D.C. - Download 2009fallconference
ABA - Fourth Annual National Institute on Securities Fraud - October 15-16, Washington D.C. here