Tuesday, June 9, 2009

Check These Out -

Dan Hurson, United States: A New Approach For The SEC—Criminal Enforcement And Mandatory Disclosure Of Violations By Public Companies

The United States Securities and Exchange Commission ("SEC") is hard at work remaking and re-energizing both its image and law enforcement role. It is also trying to ensure its survival as the premier agency overseeing the financial markets. It has assembled a new team at the helm, including a former federal prosecutor as head of the Enforcement Division and a new SEC Chairman, Mary Schapiro, who has committed herself to revitalizing the agency and has the Washington regulatory background to succeed. . .

Lisa Crosby, Sidley Austin LLP - Powerpoints from Compliance Week Conference - Compliance, Export Controls and Intermediaries - Download Compliance_Week

(esp)

June 9, 2009 in Conferences, Scholarship | Permalink | Comments (0) | TrackBack (0)

Sunday, May 31, 2009

New Articles & Books

Alan Ellis & James H. Feldman, Jr., "Intended Loss" Redefined in Fraud Cases," 24 Criminal Justice (2009)    

Pew Center on the States, Arming the Courts with Research - Evidence Based Sentencing Brief

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May 31, 2009 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Saturday, March 21, 2009

New Books

Hank J. Brightman has a book titled Today's White Collar Crime: Legal, Investigative, and Theoretical Perspectives.  It is a text for undergrad courses.  For information see here.

Patricia E. Salkin has a book titled Ethical Standards in the Public Sector, Second Edition, a book published by the ABA.

(esp)

March 21, 2009 in Books, Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, March 9, 2009

New Sentencing Article

Andrew George, Alexandra Walsh, and Bridget Moore, attorneys with Baker Botts LLP, authored a new article in 9 Criminal Litigation (2009) titled "Kimbrough, White Collar Sentencing, and the New Primacy of the Sentencing Commission."  One point made in this article is that "in this new era of commission primacy, defendants may not make much headway focusing on sentencing factors available only to the wealthy, white collar offenders.  Rather, they are probably better served by highlighting factors available to all - factors like age, health, lack of criminal history, commitment to family, or community service."

It is posted here -  Download aba_crim_lit_article_cropped.pdf with permission and a thank you.

(esp)

March 9, 2009 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Sunday, November 2, 2008

New Scholarship

Professor Miriam Baer of Brooklyn Law School has a new piece on SSRN that will be published in the Virginia Law Review. Titled, Linkage and the Deterrence of Corporate Fraud, she says that the Article "focuses on the difficulties of deterring perpetrators of fraud who are in the midst of their crimes, as opposd to potential perpetrators who are merely considering committing such crimes."  She argues "that when law enforcement policies change (ie, harsher sanctions or promises of more stringent monitoring), mid-fraud perpetrators behave differently from potential perpetrators and, perversely, may perpetrate greater harm in response to traditional increases in sanctions and monitoring resources."  She suggests policy changes.  The Article can be found here.

(esp)

November 2, 2008 in Scholarship | Permalink | Comments (0) | TrackBack (1)

Tuesday, October 28, 2008

New Articles

(esp)

October 28, 2008 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Sunday, October 12, 2008

New Scholarly Articles

Wendy Gerwick Couture, White Collar Crime's Gray Area: The Anomaly of Criminalizing Conduct Not Civilly Actionable, available at SSRN here

Adam J. Kolber, The Comparative Nature of Punishment, available at SSRN here

Geraldine Szott Moohr, Another Limitation on Honest Services Fraud?, available at SSRN here
(esp)

October 12, 2008 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Saturday, September 13, 2008

Professor Frank Bowman Responds

Guest Blogger - Professor Frank Bowman - University of Missouri School of Law:

I enjoyed reading Ms. Martz's response to my American Lawyer/Legal Times article.  It's always a relief to find that somebody reads one's stuff, and a real pleasure when it draws an intelligent response.  A couple of thoughts on that response:

First, Ms. Martz opines that, "As a philosophical matter, I do not think that open-ended criminal statutes are ever a good idea."  I find it hard to believe that she really thinks this, at least in the absolute terms she uses.  Virtually all criminal statutes are open-ended to some degree, in the sense that their reach will be unclear at the margins.  That's one reason we have appellate courts -- to settle inevitable questions about the reach of statutory language.  More importantly to the present discussion, Anglo-American criminal law long ago gave up the struggle to define in advance the precise types of financial skullduggery it would deem criminal.  The history of the development of the old common law of larceny, and the later statutory offenses of embezzlement, false pretenses, and fraud is a centuries-long movement away from the particular to the open-ended in recognition of the law's inability to anticipate the forms criminal ingenuity might take.  So, unless Ms. Martz is advocating rolling back American law to about 1799 (when the first English embezzlement statute was enacted), what we are talking about is matters of degree.  And I agree that some modern federal statutes are too vague and would benefit from careful re-thinking.  But the suggestion that the entire body of federal criminal statutes regarding fraud and corruption can or should be changed so that it is no longer "open-ended" is not a serious proposition.

Second, Ms. Martz suggests, in common with many other critics of more aggressive federal white collar crime prosecution, that federal criminal prosecutions using open-ended statutes violate standards of notice and due process.  In plain English, she is saying that people are routinely being prosecuted for conduct they are shocked, shocked to find was illegal.  Now I won't say that such an event has never happened or that better-drafted federal statutes couldn't reduce the risk of such an event.  But it is surpassingly rare.  Federal law, as badly drafted as some parts of it are, basically says, "Don't lie, cheat, or steal in connection with certain business or government activities."   Ms. Martz's argument, at bottom, is that it is unfair to punish businessmen and government officials for lying, cheating, and stealing unless a statute tells them, with precision, in advance, exactly which forms and methods of lying, cheating, and stealing are prohibited.  She and I simply disagree.  I think the general prohibition is sufficient to provide notice.  In nearly thirty years of practicing and teaching criminal law, I have rarely if ever  encountered  a white-collar defendant who did the conduct with which he was charged but did not recognize (even if only privately) its intrinsic wrongfulness - even if he vigorously denied its criminality.

And if the uncertain boundaries of federal criminal prohibitions against dishonest business or government behavior cause some to hesitate before engaging in doubtful conduct, so much the better.   An economist might argue that this uncertainty may well discourage morally ambiguous, but economically beneficial or socially desirable, behavior.  Which will sometimes be true, but that is where public and private regulation of business behavior enters the picture, drawing the nuanced lines that the criminal law cannot and modifying behavior with sanctions less terrible than those of the criminal law.

Ms. Martz seems to miss my point about regulators when she remarks, "Professor Bowman makes no case, however, for why prosecutors are any better at sussing out complicated and often highly technical misconduct than the expert regulators."  First, my main point was not that prosecutors understand particular businesses or industries better than the "expert regulators" in the field, but that, for years past, regulators have been actively discouraged from either making regulations or enforcing them.  It is precisely because the "experts" have been handcuffed that the criminal law generalists have moved in.  Give some real power back to the experts and the heavy hand of the criminal law can relent.  Second, if by "sussing out" she means investigating and discovering facts, then she badly misread my article.  As I argued there, even in a world with a more active set of public and private regulators, there are some situations and institutions that only the Justice Department can confront.  Dismiss the point as merely "pragmatic" if you will, but when big, rich, politically well-connected corporations or industries go seriously astray or corruption becomes entrenched in state or local government, the Justice Department will often be the only institution with the power and incentive to find the facts and make common sense judgments about whether the facts amount to a crime.

Ms. Martz concludes:  "In the absence of civil enforcement, criminal enforcement will undoubtedly, unequivocally step into the breach. It's a zero-sum game for American business."  I could not disagree more with her characterization of the situation as a zero-sum game for business.    It is precisely this attitude - that both active prosecution of business crime AND reasonable civil regulation of business behavior are bad - that has put us where we are today.  A sensibly reinvigorated regulatory environment would not only diminish the need for criminal intervention in business affairs, but would improve both the political and economic health of the country.

(fb)

September 13, 2008 in Scholarship | Permalink | Comments (1) | TrackBack (0)

Tuesday, September 9, 2008

2008 Antitrust Compliance Survey

Professor Daniel Sokol, University of Florida Levin College of Law, and blogger of the Lawprof Antitrust Law Blog, asked me to post the following:

In house counsel or who work at law firms advising clients are asked to take 5 minutes of their time to answer a survey by Prof. Sokol of the University of Florida Levin College of Law.  Professor Sokol is trying to determine whether government or private enforcement of the antitrust laws helps or hinders otherwise economically efficient practices by companies.  Your response to the survey will aid in this research.
To answer the survey, please copy and paste this link into your browser:   http://www.surveymonkey.com/s.aspx?sm=Dvo4dHO7NgfHfTj_2fzXXCvg_3d_3d   
Thank you  for your help.  Should you have any questions, please contact Prof. Sokol at sokold@law.ufl.edu.
(esp)

September 9, 2008 in Scholarship | Permalink | Comments (1) | TrackBack (0)

Wednesday, September 3, 2008

Response to Frank Bowman

Guest Blogger - Stephanie Martz - Senior Director, White Collar Crime Policy, National Association of Criminal Defense Lawyers (NACDL)

Professor Frank Bowman’s piece in The Legal Times ("Somebody Has to Cry Foul," August 18, 2008) is geared towards a singular thesis – that "the decline of civil regulation makes open-ended criminal statutes necessary." As a philosophical matter, I do not think that open-ended criminal statutes are ever a good idea. They fail to put American citizens on notice that certain behaviors – especially in the white collar area – are in fact against the law. We are supposed to be particularly concerned about this in the criminal, as opposed to civil or regulatory, context because of all of the consequences that are uniquely attendant to criminal prosecution, such as the deprivation of liberty and the lifelong deprivation of civil rights, the social stigma associated with conviction and incarceration, and the singular moral force and deterrent effect of the criminal law. This is why we have the "rule of lenity," in which ambiguous criminal statutes are supposed to be strictly construed by courts. As Justice Scalia wrote just this term in United States v. Santos:

Under a long line of cases, the tie must go to the defendant. The rule of lenity requires ambiguous criminal statutes to be interpreted in favor of the defendants subjected to them. This venerable rule not only vindicates the fundamental principle that no citizen should be held accountable for a violation of a statute whose commands are uncertain, or subjected to punishment that is not clearly prescribed.

How does this principle comport with Professor Bowman’s praise for "flexible" and "open-ended" criminal laws? It doesn’t, I’d venture. Let’s take honest services mail fraud as a prime example of a flexible and open-ended criminal law. This law prohibits schemes or artifices to defraud another of your "honest services" – basically, it criminalizes deceit. As numerous courts and commentators have observed, this could conceivably turn taking home a couple of reems of paper from your office into a federal felony. The statute has no built-in limits on how it can be used, and courts have struggled to come up with a coherent set of them. At base, it’s unconstitutional for Congress to permit "a standardless sweep [that] allows policemen, prosecutors, and juries to pursue their personal predlictions" (Smith v. Goguen, 415 U.S. 566, 574 (1974). Professor Bowman seems comfortable with the standardless sweep, as long as it’s in the name of filling in for absentee civil regulators.

Indeed, Professor Bowman seems willing to elide the fundamental point about the due process and notice requirements of criminal law for a hodgepodge of pragmatic reasons, which can all be filed under the rubric of ‘our last worst hope.’ (My words, not his.) "Ideally," he writes, "most of this sort of [mis]behavior would be deterred or dealt with by public and private civil regulatory mechanisms, but those mechanisms have conspicuously atrophied over the past several decades." He argues that "textual flexibility" and "broad prosecutorial discretion" are necessary because civil regulatory bodies "cannot keep pace with the rapid evolution of modern business and finance." Professor Bowman makes no case, however, for why prosecutors are any better at sussing out complicated and often highly technical misconduct than the expert regulators. In fact, criminal prosecutors are far less likely to know the industry, the accounting rules, the compensation regimes, and all of the other details that make climbing the learning curve very difficult to do in each new case. He not-so-subtly accuses civil regulatory officials of capture—calling federal prosecutors "visitors from the normal world who apply ordinary understandings of right and wrong to what they find." But he declines to acknowledge that the flipside of capture is expertise, ability, and the institutional knowledge and perspective that help to ensure against overly aggressive (or overly lenient) enforcement decisions. The "commonsense judgments of prosecutors" that Professor Bowman extols are not, put simply, universally experienced by potential criminal defendants.

In order for us to engage in a more intelligent discussion of the pragmatic aspects of civil versus criminal enforcement of business crimes, it would be helpful if we were working with a complete and illustrative universe of enforcement statistics. While Professor Bowman refers to the frequently cited fact that white collar enforcement is slightly down these days, the Federal Justice Statistics Resource Center’s information shows that the number of federal mail, wire, securities, and related crimes that have been charged each year has remained fairly steady in the last ten years. (See this blog’s "White Collar Crime Prosecutions - A Long Way to Go to Hit the Levels of 5 Years Ago, May 14, 2008, referring to TRAC statistics on white collar crime enforcement.)

On a concluding note,I do think that his thesis should serve as a cautionary tale to those who would rail against the civil regulatory state: In the absence of civil enforcement, criminal enforcement will undoubtedly, unequivocally step into the breach. It’s a zero-sum game for American business.

(sm)

September 3, 2008 in Scholarship | Permalink | Comments (1) | TrackBack (0)

Tuesday, July 22, 2008

Recent White Collar Crime Scholarship

Geraldine Szott Moohr ,Of Bad Apples and Bad Trees: Considering Fault-Based Criminal Liability for Complicit Corporations, 44 American Criminal Law Review, Vol 44, 2007 - available on SSRN here

Miriam Baer, Corporate Policing and Corporate Governance: What Can We Learn from Hewlett-Packard's Pre-testing Scandal?, University of Cincinnati Law Review - Corporate Law Symposium, 2008 - available on SSRN here 

James B. Johnston, Prosecuting Government Fraud Despite the 'CSI Effect': Getting the Jury to Follow the Money, New England Law Review, Vol. 41, 2007 - available on SSRN here

Paul Rothstein, 'Anything You Say May Be Used Against You': A Proposed Seminar ton the Lawyer's Duty to Warn of Confidentiality's Limits in Today's Post-Enron World, Fordham Law Review, Vol. 76, 2007 - available on SSRN here

July 22, 2008 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Sunday, June 29, 2008

Recent Scholarship

Plea Bargaining's Survival: Financial Crimes Plea Bargaining, a Continued Triumph in a Post-Enron World


LUCIAN E. DERVAN
Affiliation Unknown


Oklahoma Law Review, Vol. 60, No. 3, Fall 2007
Abstract:     
This article examines the war on financial crimes that began after the collapse of Enron in 2001. Although many believed that the reforms implemented following this scandal led to greater prosecutorial focus on financial crimes and longer prison sentences, an analysis of data from 1995 through 2006 reveals that little has actually changed. The statistics demonstrate that the government's focus on financial crimes has not increased and prison sentences for fraud have remained stagnant. How could this be the case? It is this author's hypothesis that although prosecutors could have chosen to use new statutes and amendments to the United States Sentencing Guidelines passed in the wake of Enron to increase prosecutions and sentences, they did not. Instead, prosecutors are using their new tools to encourage defendants to accept plea agreements that include sentences similar to those offered before 2001, while simultaneously threatening to use these same powers to secure astounding sentences if defendants force a trial. The result is that the promises of post-Enron reforms aimed at financial criminals were hollow and served only to reinforce plea bargaining's triumph.

From Boardroom to Courtroom to Newsroom: The Media and the Corporate Governance Scandals

KATHLEEN F. BRICKEY
Washington University School of Law


Journal of Corporation Law, Vol. 33, p. 625, 2008
Washington U. School of Law Working Paper No. 08-05-01

Abstract:     
Enron and its progeny spawned an unprecedented amount of press coverage. To its credit the press has, in the main, acquitted itself well. But media coverage of the ensuing investigations and trials also has raised a host of provocative questions about judgment, professionalism and restraint. Using five high-profile criminal trials arising out of recent corporate fraud scandals as a springboard, this article provides a critical analysis of how media coverage - and defendants' efforts to spin that coverage - can influence the course and outcome of a trial. Some, but not all of the mischief originates with the press. Ever conscious of the potential for media coverage to alter the outcome, defendants in high-profile fraud trials have increasingly orchestrated costly multi-media public relations campaigns that demonize prosecutors, witnesses, and the press to exonerate themselves. The five case studies in the article highlight growing points of tension between the media and the courts and provide a concrete context for exploring the extent to which we should be concerned about the potential for aggressive media coverage and media manipulation to undermine the legitimacy of the courts, to affect the outcome of lengthy criminal trials, to play on the passions of the community from which the jury will be drawn, to subvert journalistic credibility and independence, and to invite more restrictive court-imposed rules governing media coverage of high-profile trials. The article concludes that if the press is to effectively perform its watchdog role, it should be mindful of the need to watch itself. Three appendices at the end of the article provide a media-centric postscript on coverage of the corporate governance scandals.

The Changing Atmospherics of Corporate Crime Sentencing in the Post Sarbanes-Oxley Act Era

PETER J. HENNING
Wayne State University Law School


Journal of Business and Technology Law, Vol. 3, No. 2, March 18, 2008
Wayne State University Law School Research Paper No. 08-09
Abstract:     
The Sarbanes-Oxley Act of 2002 has been viewed as a watershed event in dealing with corporate fraud. In addition to its extensive provisions dealing with internal controls and corporate accounting procedures, the law adopted new crimes and pushed the United States Sentencing Commission to enhance the Federal Sentencing Guidelines provisions for fraud and related offenses. Even before the adoption of the Act, the Commission had increased the potential punishment for white collar crimes by amending the loss table for fraud offenses. These two steps played a key role in the increased sentences imposed on defendants convicted for their role in corporate crimes, such as Bernie Ebbers (twenty-five years) and John Rigas (fifteen years). The Sarbanes-Oxley Act marked a change in the sentencing atmospherics for corporate crime that propelled judges to give out sentences that were unthinkable even five years earlier.

This article considers how the Sarbanes-Oxley Act changed the approach to sentencing of white collar defendants involved in corporate crimes. It uses a hypothetical case to illustrate how sentences under the Guidelines have tripled from what they would have been just a few years earlier. It then looks at the recent Supreme Court decision in Gall v. United States that emphasized the discretion federal judges have even under the Sentencing Guidelines to shape sentences that reflect the individual circumstances of the defendant. The change in sentencing created by the Sarbanes-Oxley Act may well be abating in the new era of discretion fostered by the Supreme Court.

(esp) (posting from Denver, Colorado)

June 29, 2008 in Scholarship | Permalink | Comments (3) | TrackBack (0)

Monday, May 26, 2008

Top 10 SSRN White Collar Crime Papers from January 1997 - May 2008

ALL TIME HITS (for all papers in SSRN eLibrary)

TOP 10 Papers for Journal of White Collar Crime
January 2, 1997 to May 26, 2008

1

Train Wreck at the Justice Department: An Eyewitness Account
John McKay,
Seattle University - School of Law,
Date posted to database: November 12, 2007
Last Revised: March 13, 2008

2

The Cost to Firms of Cooking the Books
Jonathan M. Karpoff, D. Scott Lee, Gerald S. Martin,
University of Washington - Michael G. Foster School of Business, Texas A&M University - Department of Finance, American University,
Date posted to database: February 2, 2005
Last Revised: May 12, 2007

3

The European Commission's 2006 Guidelines on Antitrust Fines: A Legal and Economic Analysis
Wouter P.J. Wils,
European Commission - Directorate General for Legal Service,
Date posted to database: February 14, 2007
Last Revised: February 14, 2007

4

The Legal Penalties for Financial Misrepresentation
Jonathan M. Karpoff, D. Scott Lee, Gerald S. Martin,
University of Washington - Michael G. Foster School of Business, Texas A&M University - Department of Finance, American University,
Date posted to database: September 29, 2006
Last Revised: July 7, 2007

5

Identity Theft: Making the Known Unknowns Known
Chris Jay Hoofnagle,
University of California, Berkeley - School of Law - Berkeley Center for Law & Technology,
Date posted to database: March 13, 2007
Last Revised: May 9, 2008

6

Internal Control vs External Manipulation: A Model of Corporate Income Tax Evasion
Kong-Pin Chen, C. Y. Cyrus Chu,
Academia Sinica - Research Center for Humanities and Social Sciences, Academia Sinica - Institute of Economics,
Date posted to database: December 17, 2002 Last Revised: May 6, 2004

7

Leniency in Antitrust Enforcement: Theory and Practice
Wouter P.J. Wils,
European Commission - Directorate General for Legal Service,
Date posted to database: October 24, 2006
Last Revised: January 30, 2007

8

The Consequences to Managers for Financial Misrepresentation
Jonathan M. Karpoff, D. Scott Lee, Gerald S. Martin,
University of Washington - Michael G. Foster School of Business, Texas A&M University - Department of Finance, American University,
Date posted to database: March 22, 2007
Last Revised: May 21, 2007

9

A Forensic Study of Daewoo's Corporate Governance: Does Responsibility Solely Lie With the Chaebol and Korea?
Joongi Kim,
Yonsei University, Graduate School of Int'l Studies,
Date posted to database: July 28, 2005
Last Revised: May 22, 2007

10

The Challenge of White Collar Sentencing
Ellen S. Podgor,
Stetson University College of Law,
Date posted to database: November 23, 2007
Last Revised: January 24, 2008

May 26, 2008 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Top 10 SSRN Recent White Collar Crime Papers 3/27/08-4/26/08

RECENT HITS (for all papers announced in the last 60 days)

TOP 10 Papers for Journal of White Collar Crime
March 27, 2008 to May 26, 2008

The Changing Atmospherics of Corporate Crime Sentencing in the Post Sarbanes-Oxley Act Era
Peter J. Henning,
Wayne State University Law School,
Date posted to database: April 9, 2008
Last Revised: May 9, 2008

Department of Justice Guidelines: Balancing 'Discretionary Justice'
Ellen S. Podgor,
Stetson University College of Law,
Date posted to database: April 15, 2008
Last Revised: April 15, 2008

The Food-Chain Issue for Corporate Punishment: What Criminal Law and Punitive Damages Can Learn from Each Other
Christopher R. Green,
University of Mississippi - School of Law,
Date posted to database: March 6, 2008
Last Revised: March 22, 2008

Supreme Court Podcast: Boulware v. United States
Andy Grewal,
Georgetown University - Law Center,
Date posted to database: March 27, 2008
Last Revised: April 1, 2008

An Eliot Effect? Prosecutorial Discretion in Mutual Fund Settlement Negotiations, 2003-7
Eric Zitzewitz,
Dartmouth College,
Date posted to database: April 21, 2008
Last Revised: April 21, 2008

The Paradox of Expected Punishment: Legal and Economic Factors Determining Success and Failure in the Fight Against Organized Crime
Edgardo Buscaglia,
International Law and Economic Development Center,
Date posted to database: April 17, 2008
Last Revised: April 28, 2008

A New Corporate World Mandates a Good Faith Affirmative Defense
Ellen S. Podgor,
Stetson University College of Law,
Date posted to database: March 4, 2008
Last Revised: March 6, 2008

Hunting, Shooting and Phishing: New Cybercrime Challenges for Cybercanadians In the 21st Century
David S. Wall,
University of Leeds,
Date posted to database: April 3, 2008
Last Revised: April 19, 2008

Cybercrime, Media and Insecurity: The Shaping of Public Perceptions of Cybercrime
David S. Wall,
University of Leeds,
Date posted to database: April 24, 2008
Last Revised: April 24, 2008

Corruption as a Violation of Human Rights
Julio Bacio-Terracino,
The Graduate Institute of International and Development Studies,
Date posted to database: March 19, 2008
Last Revised: March 19, 2008

May 26, 2008 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, January 3, 2008

New Sarbanes-Oxley Article

Lisa H. Nicholson (Louisville) has a new article posted on SSRN's White Collar Crime list.  It is titled, "Sarbanes-Oxley's Purported Over-Criminalization of Corporate Offenders"  and is printed in 2 Journal of Business & Technology Law 43 (2007). The abstract states:

Abstract:     
The Sarbanes-Oxley Act of 2002 and its enhanced criminal penalties, which increase both the monetary fines and terms of imprisonment, were enacted at least in part to aid the SEC and to fill the perceived enforcement gap in combating corporate fraud. Congress, in so legislating, enlisted a criminal law behavioral model to induce law-abiding corporate behavior. In other words, Congress presumes that people will comply with the law after a conscious evaluation of the risks associated with disobeying the law. Deterrent-based punishments, however, may yield less effective outcomes for corporate fraudsters since some actors do not engage in the requisite cost-benefit assessments before acting. Moreover, even if everyone undertook such an assessment, their subjective beliefs will vary the outcomes. Indeed, a corporate offender's attitude toward risk will differ according to the type of criminal penalties that could be imposed, thereby implicating differing levels of marginal disutility.

This Article analyzes whether this tactic - that of enacting increasingly lengthier prison sentences and imposing higher fines alone - will have the desired effect of deterring potential offenders, and punishing wrongdoers. As will be demonstrated below, reliance on the Act's enhanced criminal penalties to deter wrongdoing may not yield the desired result in light of the many uncontrollable factors that may undermine both the imposition of lengthy sentences and higher fines, and the impact of such penalties on convicted wrongdoers. Consequently, the punishment prong of the costs-benefits analysis must fully extinguish all benefits of the unlawful act in order to fill in the gaps that arise from a sole reliance on deterrent-based punishment. The asset forfeiture sanction effectively removes the economic motive for the criminal conduct from the potential offender's 'benefits' calculation. Any purported benefit from the criminal scheme will be wiped out if the offender is caught. This sanction which removes the economic incentive for the fraudulent scheme also punishes those individuals who either engage in a faulty cost-benefit analysis, or who fail to engage in such an analysis altogether.

(esp)

January 3, 2008 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, December 3, 2007

New Article - "Deterrence and the Corporate Death Penalty"

Professors Assaf Hamdani (Hebrew University) and Alon Klement (Interdisciplinary Center Herzliyah - Radzyner School of Law) have a piece on SSRN titled, "Deterrence and the Corporate Death Penalty."  They argue that "the corporate death penalty may undermine deterrence."  The abstract and article for download can be found here.

(esp)

December 3, 2007 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, November 29, 2007

Sentencing for White Collar Crimes Article

The sentencing of white collar defendants, especially high-profile corporate executives convicted of a variety of fraud-related offenses, has been in the news a great deal these days.  From the 20+ year sentences handed out to Bernie Ebbers and Jeffrey Skilling to the upcoming sentencing of Lord Conrad Black in which the government has asked for upwards of 30 years, the severity of these punishments has called into question the rationale and efficacy of sentencing in white collar crime cases.  Blog co-editor Professor Ellen Podgor has a new article that will appear in the Journal of Criminal Law & Criminology entitled "The Challenge of White Collar Sentencing."  The abstract states:

Sentencing white collar offenders is difficult in that the economic crimes committed clearly injured individuals, but the offenders do not present a physical threat to society. This Article questions the necessity of giving draconian sentences, in some cases in excess of twenty - five years, to non - violent first offenders who commit white collar crimes. The attempts by the U.S. Sentencing Commission to achieve a neutral sentencing methodology, one that is class - blind, fails to respect the real differences presented by these offenders. As the term white - collar crime has sociological roots, it is advocated here that sociology needs to be a component in the sentencing of white collar offenders.

The article is available on SSRN here. (ph)

November 29, 2007 in Scholarship | Permalink | Comments (1) | TrackBack (0)

Saturday, November 24, 2007

Deferred Prosecutions Article

Deferred and non-prosecution agreements are fast becoming the accepted means for corporations to settle a range of criminal investigations, from FCPA violations to healthcare fraud to accounting problems.  What little law there is in the area has developed haphazardly, and there has not been much attention paid to these agreements in academia.  Stetson law professors Candace Zierdt and Ellen Podgor, co-editor of this blog, have contributed to the discussion with their new article, Corporate Deferred Prosecutions Through the Looking Glass of Contract Policing.  From the abstract:

This article examines deferred and non-prosecution agreements entered into between corporations and the Department of Justice (DOJ) through the lens of contract policing theory. It adds a new dimension to the contractual law now applicable to plea bargains and proffer agreements by suggesting key provisions that should be prohibited in deferred prosecution agreements. Three provisions common to many deferred prosecution agreements, or used by the government as leverage to secure a deferred prosecution agreement, are of particular interest here. These are: (1) the requirement of a corporation to waive its attorney-client privilege; (2) the determination of a breach of the agreement being within the sole province of the government; and (3) the provision that corporations not abide by previously negotiated contract terms that allow the corporation to pay the attorney fees of corporate employees. Specifically, this article examines the viability of specific provisions within these agreements when matched up against contract policing principles such as duress and unconscionability. This article concludes that corporations are deprived of basic contract rights as a result of the over-powering prosecutorial power used in reaching these agreements.

The article is available to download on SSRN (here). (ph)

November 24, 2007 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, August 17, 2007

Central States Law School Association Conference

Central States Law School Association and the Journal of Law in Society Joint Conference October 26-27, 2007

The Central States Law School Association and the Journal of Law in Society announce a joint conference at Wayne State University Law School in Detroit, Michigan on October 26-27, 2007. The conference will consist of a Friday afternoon symposium presentation of selected papers and Saturday open workshop panel presentations. With author consent, the selected symposium papers will be published in the Journal of Law in Society as its symposium issue for 2007-2008.

Authors will present selected symposium papers on Friday afternoon in up to three panel sessions with question and answer periods at the end of each panel session. A participant dinner will be held at the close of the panels on Friday. From 9 am until 4 pm on Saturday, authors will present papers on any private or public-law topic in a number of workshop panels, with question and answer periods either after each paper or at the end of each panel as the authors decide. The annual meeting of the Central States Law School Association and election of officers for 2007-2008 will conclude the conference on Saturday evening.

Symposium Topic

Does Globalization Represent a Threat or Promise for Social Justice and Democratic Institutions? With the rapid pace of globalization, countries have witnessed increasing integration of communications, economic processes, and financial markets. There is a widespread assumption that the competitive pressures unleashed by globalization are ultimately useful in spurring broader economic growth and greater integration, yet there is also growing concern that globalization plays a direct role in creating new and in some cases apparently insoluble problems for social justice and democratic institutions.

Conference participants are invited to consider this topic from three perspectives: (1) Does the growing power of corporations and their concomitant ability to set the terms of competition in a globalized economy aid or hurt social justice and democratic institutions? (2) Do increases in property right protection (including intellectual property regimes) aid or hurt social justice and democratic institutions? (3) Do financial and tax competition aid or hurt social justice and democratic institutions?

Open workshop paper proposals or abstracts may be submitted anytime up until August 25, 2007. Workshop paper proposals will continue to be accepted after the August deadline, subject to the availability of presentation slots.

Proposals must contain the following information: (1) name, address, telephone, and email; (2) title of presentation; (3) brief description of presentation idea; and (4) organization affiliation and position. Completed papers are not required, although they are welcome. Please send submissions via email to Mr. Oday Salim at the following email address: thejournal@wayne.edu. In the subject line, please include your name and the words "Central States."

Any other questions can be addressed to any of our officers:

President Linda Beale, Associate Professor, Wayne State University Law School, lbeale@wayne.edu; (313)577-3941

Vice-President Cindy Buys, Assistant Professor, Southern Illinois University School of Law, cbuys@siu.edu; (618)453-8743

Treasurer Carolyn Dessin, Associate Professor, University of Akron School of Law, cld3@uakron.edu; (330)972-6358

Secretary Danshera Cords, Associate Professor, Capital University Law School, dcords@law.capital.edu; (614)236-6516

August 17, 2007 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 31, 2007

SEALS White Collar Crime Panel

The Southeast Association of Law Schools (SEALS) included a panel discussion titled, White Collar Crime in the Post-Enron Era: Substance and Scholarship, with Joan Hemingway (Tennessee) moderating the panel.

The first speaker, John Hasnas (Georgetown Business School), spoke of the existing "Commander & Control" Approach and how it is detrimental to the corporate structure in creating an adversarial relationship among the parties. Hasnas called for a "Procedural Justice" approach. He noted how punishing the innocent is not justified for retribution standards and this occurs under the existing model.

Lisa Nicholson (University of Louisville, Louis D. Brandeis School of Law), started by discussing the growing debate between those who think the existing punishment is not enough and those who think Congress has gone too far. She advocated for removing the economic incentive of the criminal conduct and proposed use of asset forfeiture to accomplish this.

Chris Slobogin (U of Florida) focused on the "law of counts," looking at the overlapping situation ("redundant charges") when prosecutors charge different crimes for the same conduct. Looking at the Martha Stewart case he noted the deficiencies of redundant charging.

Lisa Fairfax (Maryland) looked at outside director liability. She noted how these individals can be an integral role in the fraud in their failure to provide proper oversight. But that said, she did not advance making this criminal liability.

(esp)

July 31, 2007 in Scholarship | Permalink | Comments (0) | TrackBack (0)