Friday, August 6, 2010
“[I expect] to see future litigation surrounding efforts by prosecutors to wedge their cases into the ‘bribe or kickback’ paradigm to which the Court has now limited this statute.”
NACDL President Cynthia Hujar Orr commenting upon the Supreme Court's decision in Skilling v. United States.
Consider the following hypothetical:
X is a well-known insurance industry executive who has had affiliations with many different insurance and reinsurance companies over the years. X has a relationship with ACME Credit Life Reinsurance, a company that re-insures the credit life insurance offered to purchasers of new and used boats. The policies are typically marketed through retail boat dealerships. Dealerships keep a portion of each premium and send a portion to the primary insurer. The primary insurer in turn sends a portion of the premium to ACME. Although X is not listed as an officer of ACME, he has a hidden interest in the company and receives a commission on every policy re-insured through ACME.
X accepts a job as President of Sterling Insurance.
The Sterling Board is unaware of X's relationship with ACME when it hires X.
Reinsurance obtained through ACME is a quality product that is competitively priced. Payments made by
Q: Are X's ACME commissions "kickbacks" in the post-Skilling world?
Tuesday, August 3, 2010
A panel of law professors at the Southeast Association of Law Schools (SEALS) explored grand jury reform. The first speaker was Professor Roger Fairfax (George Washington), who provided a historical overview of the grand jury. He noted its place constitutionally and provided what role reform might play if the Congress revises federal criminal law. Next up, Professor Eric Miller (Saint Louis), looked at encouraging grand jurors to act more forcefully in telling the prosecutor what should be prosecuted. Professor Ric Simmons (Ohio State) looked at how to make the grand jury more independent. One item he advocated for was having evidence rules apply to the grand jury. Professor Andrew Leipold noted how little reform has occurred with regard to the grand jury -- "an incredibly stable world." He asked whether this is a problem that needs a solution. The final speaker was Professor Margaret Lawton (Charleston), who said that we should look at reforms being suggested. She noted how reforms put forth by NACDL match with items in the US Attorneys' Manual. But the question here, she stated, may be what is happening in practice.
The panel was moderated by Professor Katrice Copeland (Penn State), who asked thoughtful questions that brought out important points on reforming the grand jury process. From these questions, the panel talked about - what would the world look like without a grand jury. They looked at various reform proposals - such as why not have the grand jury having options beyond indict or not indict. Mentioned several times was whether the grand jury should have a role of providing diversion. They also considered whether a reform proposal would work to the benefit of the defendant or prosecutor. Professor Copeland questioned whether more things should be added to the grand jury's role when so many agree they are not doing a satisfactory job. The panel discussed what procedures from state grand jury procedures should be adopted in the federal system.
Professor Roger Fairfax noted his forthcoming book - Grand Jury 2.0 (Carolina) that includes pieces from law professors on many aspects of the grand jury and reforms that might enhance this process.
(esp) (blogging from Palm Beach, Florida)
Monday, August 2, 2010