Sunday, May 1, 2016
"The article rejects suggestions that the rhetorical and regulatory changes occurred because prosecutorial misconduct has become more prevalent. It identifies other social causes: a public awakening to criminal justice problems for which prosecutors bear responsibility; revelations, in particular, regarding the role of prosecutorial misconduct in wrongful conviction cases; new social science understandings about social and psychological predicates for prosecutorial wrongdoing; and reform organizations’ inclusion of systemic prosecutorial reform on their agenda. The article shows how the internet has served as the essential catalyst for shifting public and judicial attitudes. The article concludes by predicting that the old and new approaches to prosecutorial accountability will coexist into the foreseeable future, and that the implications will include both a more active judicial role in critiquing and overseeing prosecutors and increased self-regulation by prosecutors’ offices."
Thursday, April 28, 2016
A wonderful article appeared in the NYLJ back in March concerning textualism in white collar law. Authors Elkan Abramowitz and Jonathan Sack remark on the broadly worded statutes one finds in the white collar arsenal, and how Justice Scalia was a leader in using a textualist approach in interpreting these statutes. The authors of this article reflect on the "exculpatory no" and obstruction of justice as two examples in demonstrating the use of textualism.
With Justice Scalia no longer with us, it will be interesting to see if others pick up this theme in current cases such as former Gov. McDonnell.
Friday, April 1, 2016
From the abstract:
Corporate compliance is becoming increasingly “criminalized.” What began as a means of industry self-regulation has morphed into a multi-billion dollar effort to avoid government intervention in business, specifically criminal and quasi-criminal investigations and prosecutions. In order to avoid application of the criminal law, companies have adopted compliance programs that are motivated by and mimic that law, using the precepts of criminal legislation, enforcement, and adjudication to advance their compliance goals. This approach to compliance is inherently flawed, however — it can never be fully effective in abating corporate wrongdoing. Explaining why that is forms this Article’s main contribution. Criminalized compliance regimes are inherently ineffective because they impose unintended behavioral consequences on corporate employees. Employees subject to criminalized compliance have greater opportunities to rationalize their future unethical or illegal behavior. Rationalizations are a key component in the psychological process necessary for the commission of corporate crime — they allow offenders to square their self-perception as “good people” with the illegal behavior they are contemplating, thereby allowing the behavior to go forward. Criminalized compliance regimes fuel these rationalizations, and in turn bad corporate conduct. By importing into the corporation many of the criminal law’s delegitimatizing features, criminalized compliance creates space for rationalizations, facilitating the necessary precursors to the commission of white collar and corporate crime. The result is that many compliance programs, by mimicking the criminal law in hopes of reducing employee misconduct, are actually fostering it. This insight, which offers a new way of conceptualizing corporate compliance, explains the ineffectiveness of many compliance programs and also suggests how companies might go about fixing them.
Monday, March 21, 2016
I have just published a new article in the Compliance Elliance Journal entitled "Internal Investigations and the Evolving Fate of Privilege."
In 1981, the United States Supreme Court delivered a landmark ruling in Upjohn Co. v. United States. The decision made clear that the protections afforded by the attorney-client privilege apply to internal corporate investigations. This piece examines the fundamental tenets of Upjohn, discusses some recent challenges to the applicability of privilege to materials gathered during internal investigations, and considers the manner in which the international nature of modern internal investigations adds complexity and uncertainty to the field.
The article is available for free download here.
Monday, September 14, 2015
I have just released a new article discussing the sentencing of Jordan Belfort, better known as the "Wolf of Wall Street." I use this case as a mechanism for considering how white collar sentencing has evolved from the 1980s until today. In particular, the article examines the growth in uncertainty and inconsistency in sentences received by major white collar offenders over this period of time and considers some of the reasons for this trend. The article also examines the impact of recent amendments adopted by the U.S. Sentencing Commission on white collar sentences.
Lucian E. Dervan, Sentencing the Wolf of Wall Street: From Leniency to Uncertainty, 61 Wayne Law Review -- (2015).
This Symposium Article, based on a presentation given by Professor Dervan at the 2014 Wayne Law Review Symposium entitled "Sentencing White Collar Defendants: How Much is Enough," examines the Jordan Belfort (“Wolf of Wall Street”) prosecution as a vehicle for analyzing sentencing in major white-collar criminal cases from the 1980s until today. In Part II, the Article examines the Belfort case and his relatively lenient prison sentence for engaging in a major fraud. This section goes on to examine additional cases from the 1980s, 1990s, and 2000s to consider the results of reforms aimed at “getting tough” on white-collar offenders. In concluding this initial examination, the Article discusses three observed trends. First, today, as might be expected, it appears there are much longer sentences for major white-collar offenders as compared to the 1980s and 1990s. Second, today, there also appears to be greater uncertainty and inconsistency regarding the sentences received by major white-collar offenders when compared with sentences from the 1980s and 1990s. Third, there appear to have been much smaller sentencing increases for less significant and more common white-collar offenders over this same period of time. In Part III, the Article examines some of the possible reasons for these observed trends, including amendments to the Federal Sentencing Guidelines, increased statutory maximums, and judicial discretion. In concluding, the Article offers some observations regarding what the perceived uncertainty and inconsistency in sentencing major white-collar offenders today might indicate about white-collar sentencing more broadly. In considering this issue, the Article also briefly examines recent amendments adopted by the U.S. Sentencing Commission and proposed reforms to white-collar sentencing offered by the American Bar Association.
Wednesday, August 26, 2015
Once again, the ABA Criminal Justice Section Academics Committee will host work-in-progress roundtables at the annual Criminal Justice Section Fall Institute in Washington, DC. The roundtables will be held on Thursday, October 22, 2015 from 12:30-3:00pm at the Loews Madison Hotel, and the ABA will provide sandwiches and drinks for lunch. The rest of the CJS Fall Institute programs will take place later in the day on Thursday, October 22 and on Friday, October 23 at the same hotel.
We hope you will consider workshopping your criminal justice works-in-progress at these roundtables. Participants will present their work in a roundtable format, and abstracts or drafts will be shared among presenters and discussants in advance of the workshop. If you’re interested in participating, please email an abstract of your paper of no more than 500 words to Lucian Dervan at firstname.lastname@example.org by Sept. 15, 2015. Space is limited, and presenters will be chosen by members of the organizing committee.
This is an excellent opportunity for academics at any stage of their careers, and for those who would like to transition to academia, to workshop pieces at an early stage of development or obtain feedback on more developed pieces. Workshop presenters will be responsible for their own travel and hotel costs, but there is no registration fee for participating in the roundtables. If you decide to participate in the remainder of the ABA CJS Fall Institute, you will need to register for that event separately.
We are also excited to note that this year’s workshop will begin with a brief opening address by Professor Stephen A. Saltzburg of the George Washington University Law School. Professor Saltzburg will discuss how to create and execute a productive and impactful research agenda. Professor Saltzburg is one of the nation’s leading scholars and has authored over twenty books and over 100 articles. Professor Saltzburg’s talk is not to be missed.
The Criminal Justice Section has secured a special room rate of $269 single/double per night at the Lowes Madison Hotel. This rate can be reserved by calling 855-255-6397 and referring to the “ABA Criminal Justice Section Fall Institute.” You can also book online. Reservations must be made by Thursday, October 1, 2015 at 5:00pm EST to secure this rate.
Please spread the word to those who might be interested, including those not yet in academia. We have included below some information regarding last year’s workshop. We hope to see everyone in D.C. at the end of October.
All the best,
Lucian E. Dervan (SIU Law) and Meghan J. Ryan (SMU Law)
Co-Chairs, ABA CJS Academics Committee
Information Regarding Last Year’s Roundtable
On October 23, 2014, the ABA Criminal Justice Section Academics Committee hosted academic roundtables at the ABA Criminal Justice Section Seventh Annual Fall Institute. At these roundtables, scholars from across the country discussed papers on topics ranging from big data’s effect on jury selection to whether second-look sentencing is consistent with the asserted purposes of the Model Penal Code. Participants in the academic roundtables included Joanmarie Davoli (Florida Coastal, now Fed. Soc.), Cara Drinan (Catholic), Andrew Ferguson (Univ. of D.C.), Lea Johnston (Florida), Kevin Lapp (Loyola LA), Ion Meyn (Wisconsin), Steve Morrison (North Dakota), Anthony O’Rourke (Buffalo), and Meghan Ryan (SMU).
Here is a sampling of the great work they presented:
The Miller Revolution, by Cara Drinan (forthcoming in the Iowa L. Rev.)
In a series of cases culminating in Miller v. Alabama, the United States Supreme Court has limited the extent to which juveniles may be exposed to the harshest criminal sentences. In this Article, I argue that the Miller trilogy has revolutionized juvenile justice. While we have begun to see only the most inchoate signs of this revolution in practice, this Article endeavors to describe what this revolution may look like both in the immediate term and in years to come. Part I demonstrates how the United States went from being the leader in progressive juvenile justice to being an international outlier in the severity of its juvenile sentencing. Part II examines the Miller decision, as well as its immediate predecessor cases, and explains why Miller demands a capacious reading. Part III explores the post-Miller revolution in juvenile justice that is afoot. Specifically, Part III makes the case for two immediate corollaries that flow from Miller, each of which is groundbreaking in its own right: 1) the creation of procedural safeguards for juveniles facing life without parole (“LWOP”) comparable to those recommended for adults facing the death penalty; and 2) the elimination of mandatory minimums for juveniles altogether. Finally, Part III identifies ways in which juvenile justice advocates can leverage the moral leadership of the Miller Court to seek future reform in three key areas: juvenile transfer laws; presumptive sentencing guidelines as they apply to children; and juvenile conditions of confinement.
Strictissimi Juris, by Steve Morrison (67 Ala. L. Rev. __ (forthcoming 2015)
Guilt by association is universally rejected, but its criticisms are always based on the substantive due process right to individual, not imputed, liability. The rule of strictissimi juris promises to be the procedural counterpart to the substantive right. Its promise, however, has gone unfulfilled because it is little understood or developed. This article provides a descriptive, prescriptive, and contextual dissertation on strictissimi juris. Descriptively, it provides the jurisprudential foundation and definition of strictissimi juris. Prescriptively, it sets forth the purposes for which lawyers and courts have invoked strictissimi juris, thus providing a guide for how future lawyers might invoke strictissimi juris, and courts apply it. Contextually, it analogizes strictissimi juris to substantive canons that play important roles in the separation of powers.
Tuesday, July 14, 2015
Ellen Podgor and I have just released a new article discussing the complexities of defining the term “white collar crime.” The ability to define and identify white collar offenses is vital, as it allows one to track, among other things, the number of these cases prosecuted each year, the frequency with which particular types of charges are brought in these matters, and the sentences imposed on those convicted. This new article begins with a brief historical overview of the term “white collar crime.” The piece then empirically examines several specific crimes to demonstrate that statutory approaches to defining and tracking white collar offenses are often ineffective and inaccurate. The article then concludes by recommending that the U.S. Sentencing Commission adopt a new multivariate definitional approach that recognizes the hybrid nature of many white collar offenses. The final version of the article will appear next year in Volume 50 of the Georgia Law Review.
Ellen S. Podgor and Lucian E. Dervan, “White Collar Crime”: Still Hazy After All These Years, 50 Georgia Law Review -- (forthcoming 2016).
With a seventy-five year history of sociological and later legal roots, the term “white collar crime” remains an ambiguous concept that academics, policy makers, law enforcement personnel and defense counsel are unable to adequately define. Yet the use of the term “white collar crime” skews statistical reporting and sentencing for this conduct. This Article provides a historical overview of its linear progression and then a methodology for a new architecture in examining this conduct. It separates statutes into clear-cut white collar offenses and hybrid statutory offenses, and then applies this approach with an empirical study that dissects cases prosecuted under hybrid white collar statutes of perjury, false statements, obstruction of justice, and RICO. The empirical analysis suggests the need for an individualized multivariate approach to categorizing white collar crime to guard against broad federal statutes providing either under-inclusive or over-inclusive examination of this form of criminality.
Tuesday, June 30, 2015
Walt Pavlo (500 Pearl Street) and Jack Donson (former BOP Case Manager) developed a unique interactive website to educate lawyers on what a client needs to know about the prison experience. Check it out here. They state, "[p]risonology's intuitive website provides an easy to read narrative, a video interview with an expert on the topic, links to BOP and US Probation policies, tips, and written experiences from those who have gone through the process. It has everything a client needs to be informed and prepared." It is wonderful to see technology being used to educate lawyers so that they can be in a better position to advise and inform their clients.
Sunday, March 8, 2015
"Should the Medium Affect the Message? Legal and Ethical Implications of Prosecutors Reading Inmate-Attorney Email"
New Student Note - Brandon P. Ruben (Fordham) - here
Monday, February 2, 2015
Judge Rakoff has authored an interesting article in the New York Review of Books examining Professor Brandon L. Garrett’s book entitled “Too Big to Jail: How Prosecutors Compromise with Corporations.” Professor Garrett’s book looks closely at the use of deferred prosecution agreements by the government and includes a wealth of information and data. While Professor Garrett concludes that deferred prosecution agreements have been “ineffective,” he also proposes a number of steps that might make them more efficient in the future. Along with conducting a nice discussion of Professor Garrett’s book, Judge Rakoff offers his own perspective on these agreements in his review. For those interested in deferred prosecution agreements, both Judge Rakoff’s article and Professor Garrett’s book are must reads.
Sunday, August 10, 2014
Court E. Golumbic & Albert D. Lichy, The 'Too Big to Jail' Effect and the Impact on the Justice Department's Corporate Charging Policy, ssrn abstract -
In the wake of the 2008 financial crisis, the failure of the Department of Justice (“Justice Department” or “DOJ”) to bring criminal charges against any financial institutions prompted critics to question whether
the DOJ maintained a policy that certain corporations are “too big to jail.” The criticism piqued after the DOJ announced that it had entered into a deferred prosecution agreement (“DPA”) with HSBC to resolve a massive money laundering and government sanctions investigation.
This wave of criticism is the backdrop for what the Authors call the “too big to jail” effect — two related developments, each of which has the potential to impact the future of DPAs in the corporate crime context. The first is a willingness on the part of at least one federal district court to inject a level of judicial intervention into the process of structuring DPAs. In approving the HSBC, Judge John Gleeson issued a groundbreaking opinion articulating, for the first time, a standard for district court review of the terms of a DPA. The second is an emerging willingness on the part of the DOJ to pursue criminal charges over DPAs in high-profile cases involving financial institutions. In a strong departure from past practice, the DOJ recently secured guilty pleas from the foreign subsidiaries of UBS and RBS, SAC Capital Advisors and three related entities, and the parent of Credit Suisse.
This Article examines the impact of the “too big to jail” effect on the Justice Department’s corporate charging practices. The Authors argue that DPAs should not be abandoned. Instead, Congress should amend the Speedy Trial Act to require substantive, judicial review of the terms of DPAs. To
this end, the Authors propose a standard of review that is designed to maximize the benefits of DPAs, while minimizing the concerns that have historically accompanied their use.
Sunday, August 3, 2014
Article by Sara Sun Beale (Duke) - The Development and Evolution of the U.S. Law of Corporate Criminal Liability (SSRN)-
In the United States, corporate criminal liability developed in response to the industrial revolution and the rise in the scope and importance of corporate activities. This article focuses principally on federal law, which bases corporate criminal liability on the respondeat superior doctrine developed in tort law. In the federal system, the formative period for the doctrine of corporate criminal liability was the early Twentieth Century, when Congress dramatically expanded the reach of federal law, responding to the unprecedented concentration of economic power in corporations and combinations of business concerns as well as new hazards to public health and safety. Both the initial development of the doctrine and the evolution in its use reflect a utilitarian and pragmatic view of criminal law.
This article describes the evolution of the practice of corporate criminal liability and sentencing, arguing that administrative responses by the Department of Justice and the U.S. Sentencing Commission have responded to widespread criticism of the existence of corporate liability as well as the breadth of the respondeat superior standard of liability. As a result of this evolution in enforcement, only a very small number of corporations are convicted, and the penalties imposed on those that are convicted are adjusted to reflect corporate culpability. Nevertheless, the broad potential for criminal liability has significant consequences for a wide range of corporate behavior. Corporations have powerful incentives to perform internal investigations, cooperate with both regulators and prosecutors, and actively pursue settlement of claims of misconduct. To avoid criminal liability, corporations also enter into deferred prosecution agreements that often require changes in corporate business practices and governance as well as monitoring to ensure compliance. The purpose of these administrative responses attempt is to reduce or eliminate the negative effects of imposing criminal liability while exploiting the law’s power to deter criminal behavior, improve corporate citizenship, and bring about beneficial structural reforms.
The persistence of the doctrine of respondeat-superior-based corporate criminal liability and its limitation in practice shed light on three key aspects federal criminal law. First, the Sentencing Guidelines have served as a more limited substitute for comprehensive criminal code reform. Second, the federal justice system lacks the resources to process the vast majority of cases falling under the criminal code, and prosecutorial discretion is relied upon to select a small fraction of cases for prosecution. Finally, like corporations, all defendants receive incentives for cooperation that may effectively compel them to plead guilty and/or assist in the investigation and prosecution of others.
Friday, August 1, 2014
New Article by Professor Lucian Dervan - White Collar Over-Criminalization: Deterrence, Plea Bargaining, and the Loss of Innocence published in 101 Kentucky Law Journal. The abstract states:
Overcriminalization takes many forms and impacts the American criminal justice system in varying ways. This article focuses on a select portion of this phenomenon by examining two types of overcriminalization prevalent in white collar criminal law. The first type of over criminalization discussed in this article is Congress’s propensity for increasing the maximum criminal penalties for white collar offenses in an effort to punish financial criminals more harshly while simultaneously deterring others. The second type of overcriminalization addressed is Congress’s tendency to create vague and overlapping criminal provisions in areas already criminalized in an effort to expand the tools available to prosecutors, increase the number of financial criminals prosecuted each year, and deter potential offenders. While these new provisions are not the most egregious examples of the overcriminalization phenomenon, they are important to consider due to their impact on significant statutes. In fact, they typically represent some of the most commonly charged offenses in the federal system.
Through examination of the Sarbanes-Oxley Act of 2002 and examples of these two types of over criminalization within that law, this article seeks to understand whether new crimes and punishments really achieve their intended goals and, if not, what this tells us about and means for the over criminalization debate and the criminal justice system as a whole.
Tuesday, May 13, 2014
Josh Greenberg and Ellen Brotman have written a timely and informative article entitled Strict Vicarious Liability for Corporations and Corporate Executives-Stretching the Boundaries of Criminalization for Volume 51 of the American Journal of Criminal Law. The article, and related pieces on criminal liability in the corporate context by Mark Filip, Julie O'Sullivan, Barry Pollack and others, can also be found on the Journal's website at http://www.americancriminallawreview.com/.
Friday, November 22, 2013
Catherine Martin Christopher has a new article titled, "Whack-a-Mole: Why Prosecuting Digital Currency Exchanges Won't Stop Online Laundering." The SSRN abstract states:
Law enforcement efforts to combat money laundering are increasingly misplaced. As money laundering and other underlying crimes shift into cyberspace, U.S. law enforcement focuses on prosecuting financial institutions’ regulatory violations to prevent crime, rather than going after criminals themselves. This article will describe current U.S. anti-money laundering laws, with particular criticism of how attenuated prosecution has become from crime. The article will then describe the use of Bitcoin as a money-laundering vehicle, and analyze the difficulties for law enforcement officials who attempt to choke off Bitcoin transactions in lieu of prosecuting underlying criminal activity. The article concludes with recommendations that law enforcement should look to digital currency exchangers not as criminals, but instead as partners in the effort to eradicate money laundering and — more importantly — the crimes underlying the laundering.
Thursday, November 14, 2013
Todd Haugh (Illinois Institute of Technology - Chicago-Kent College of Law) has a new forthcoming article in the Fordham Law Review - here. The SSRN Abstract states -
“So why did Mr. Gupta do it?” That question was at the heart of Judge Jed Rakoff’s recent sentencing of Rajat Gupta, a former Wall Street titan and the most high-profile insider trading defendant of the past 30 years. The answer, which the court actively sought by inquiring into Gupta’s psychological motivations, resulted in a two-year sentence, eight years less than the government requested. What was it that Judge Rakoff found in Gupta that warranted such a modest sentence? While it was ultimately unclear to the court exactly what motivated Gupta to commit such a “terrible breach of trust,” it is exceedingly clear that Judge Rakoff’s search for those motivations impacted the sentence imposed.
This search by judges sentencing white collar defendants — the search to understand the “why” motivating defendants’ actions — is what this article explores. When judges inquire into defendants’ motivations, they necessarily delve into the psychological justifications defendants employ to free themselves from the social norms they previously followed, thereby allowing themselves to engage in criminality. These “techniques of neutralization” are precursors to white collar crime, and they impact courts’ sentencing decisions. Yet the role of neutralizations in sentencing has been largely unexamined. This article rectifies that absence by drawing on established criminological theory and applying it to three recent high-profile white collar cases. Ultimately, this article concludes that judges’ search for the “why” of white collar crime,
which occurs primarily through the exploration of offender neutralizations, is legally and normatively justified. While there are potential drawbacks to judges conducting these inquiries, they are outweighed by the benefits of increased individualized sentencing and opportunities to disrupt the mechanisms that make white collar crime possible.
Wednesday, August 14, 2013
Call for Papers from the Notre Dame Jrl of Law, Ethics, and Public Policy -
The Notre Dame Journal of Law, Ethics & Public Policy is currently accepting articles and essays from professors, practitioners, and public officials for publication in its symposium issue, which will focus on the legal, moral, and ethical considerations of white-collar crime in the twenty-first century, which will be published early next year. Articles should be approximately 9,000 to 15,000 words and in Bluebook Citation format. Additionally, symposium authors will be among those selected to participate in our symposium event, which will be scheduled during the Spring 2014 semester.
The law student-edited Journal is unique among legal periodicals because it examines public policy and legal questions within the framework of the Judeo-Christian intellectual and moral tradition. The Journal has a national audience of persons actively involved in the formulation of public policy, and often includes timely pieces from a broad spectrum of prominent scholars and officials. The Journal’s unique focus is widely recognized, as demonstrated in citations to the Journal by various state and federal courts, including the United States Supreme Court. More information on the Journal is available at https://law.nd.edu/publications/journals/notre-dame-journal-of-law-ethics-public-policy/.
If you are interested in submitting a piece, please contact the Journal’s Executive Articles Editor, Angela Johnson at email@example.com or (574) 238-9225. Please submit by November 1, 2013. The Executive Board will consider submissions for publication immediately and would appreciate hearing of an author’s intent to submit as soon as possible.
Tuesday, June 25, 2013
Washington University Law School reports the passing of Kathleen F. Brickey here. The New York Times here called her " the dean of the field." She authored the first casebook in this area, wrote an incredible treatise on Corporate Criminal Liability, a book on Environmental Crimes and authored many articles in the white collar field. (see here). She served as the model professor and author for so many of us that came after her, entering a white collar scholarship world that was carved by her work. R.I.P.
Sunday, March 31, 2013
Maurice E. Stucke (University of Tennessee) authored an article titled, "Should Competition Policy Promote Happiness?" The SSRN abstract states:
What, if anything, are the implications of the happiness economics literature on competition policy? This Paper first examines whether competition policy should promote (or at least not impede) citizens’ opportunities to increase well-being. The Paper next surveys the happiness literature on five key issues: (i) What constitutes well-being; (ii) How do you measure well-being; (iii) What increases well-being; (iv) Do people want to be happy; and (v) Can and should the government promote total well-being? Although the happiness literature does not provide an analytical framework for analyzing routine antitrust issues, this does not mean that competition officials should discount or ignore the literature altogether.
The findings of the happiness literature, as this Paper argues, offer some helpful insights on the current debate over competition policy's goals. The literature suggests that competition policy in a post-industrial wealthy country would get more bang (in terms of increased well-being) in promoting economic, social and democratic values, rather than simply promoting a narrowly-defined consumer welfare objective.
Sunday, March 24, 2013
Daniel Sokol (UF & Minn) has a new piece titled, Policing the Firm. SSRN states:
Criminal price fixing cartels are a serious problem for consumers. Cartels are hard to both find and punish. Research into other kinds of corporate wrongdoing suggests that enforcers should pay increased attention to incentives within the firm to deter wrong-doing. Thus far, antitrust scholarship and policy have ignored this insight. This article suggests how to improve antitrust enforcement by focusing its efforts on changing the incentives of internal firm compliance.