Symposium: Reducing Corporate Criminality

Evaluating Department of Justice Policy on the Prosecution of Business Organizations and Options for Reform, an Introduction

This issue of the ACLR is devoted to the topic of federal corporate criminal law. This is no mean task: as Julie O’Sullivan describes in her piece on the DOJ’s corporate charging policy, the number of federal criminal statutes has grown so large as to be effectively almost impossible to count with precision, and the number of federal criminal regulations may be as high as 300,000.

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Mark Filip

How Prosecutors Apply the "Federal Prosecutions of Corporations" Charging Policy in the Era of Deferred Prosecutions, and What That Means for the Purposes of the Federal Criminal Sanction

The conference coordinators tasked me with summarizing “how we got here”—that is, to present a brief historical account of the development of current federal corporate law enforcement policy. 

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Julie Rose O'Sullivan

A Context for Evaluating Department of Justice Policy on the Prosecution of Business Organizations: Is the Department of Justice Playing in the Right Ballpark?

Federal criminal law permits the prosecution of business organizations for crimes committed by their employees acting within the scope of their employment with the intent to benefit the organization. This means that United States Attorneys must decide when to bring charges against business organizations as collective entities. They do so on the basis of guidance provided by The Principles of Federal Prosecution of Business Organizations, which, in its current incarnation, is known as the Filip Memorandum.

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John Hasnas

Strict Vicarious Criminal Liability for Corporations and Corporate Executives: Stretching the Boundaries of Criminalization

Under the doctrine that currently prevails in the federal courts of appeals, a corporation is subject to strict vicarious liability for a criminal act by one of its employees if the employee acted within the scope of his employment and intended, at least in part, to benefit the corporation.

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Joshua D. Greenberg and Ellen C. Brotman

Lone Wolf or the Start of A New Pack: Should the FCPA Guidance Represent A New Paradigm in Evaluating Corporate Criminal Liability Risks?

This article examines the reasons behind the development of the guidance, evaluates whether this type of guidance is unique in the corporate criminal liability context, and assesses whether extra-judicial guidance is desirable in the FCPA and other criminal enforcement contexts.

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Barry J. Pollack and Annie Wartanian Reisinger 

Toward Improving the Law and Policy of Corporate Criminal Liability and Sanctions

In this paper, I comment on the DOJ’s policies from my perspective as a white-collar defense lawyer. I have focused particularly on the policies as they relate to a corporation (and other organizations which I refer to collectively as corporations) that faces potential prosecution for an employee’s acts that were unknown to it, contrary to its policies, and contrary to its interests.

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Irwin Schwartz

Asadi v. GE Energy (USA) L.L.C.: A Case Study of the Limits of Dodd-Frank Anti-Retaliation Protections and the Impact on Corporate Compliance Objectives

The Dodd-Frank Wall Street Reform and Consumer Protection Act of 20101 (“Dodd-Frank,” “Dodd-Frank Act,” or “the Act”) was enacted in the wake of the financial crisis of 2007 and 2008. Among numerous other undertakings, Dodd- Frank provided whistleblower protections and so-called “bounty provisions” for company employees who report securities law violations to the U.S. Securities and Exchange Commission (“SEC”), and sometimes to employers. Under some circumstances, Dodd-Frank also protects employees who report violations of other laws enforceable by the SEC. The whistleblower protections were meant to encourage company employees to report violations of law by protecting them from employment retaliation that may arise as a result of reporting violations. However, a paradox has developed in the application of Dodd-Frank’s whistleblower protections.

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Nicole H. Sprinzen

Reducing Criminal Wrongdoing Within Business Organizations: The Practical and Political Skills of Integrity

The foundational argument of my analysis has two pillars. First, I will argue that the managing of distrust and suspicions is at the core of the compliance-based approach to reducing corporate wrongdoing, which has focused on accountability strategies. Second, I will argue that the building of trust and relationships is at the core of the integrity-based approach to reducing corporate wrongdoing, which has focused on responsibility strategies. In other words, the key to reducing corporate wrongdoing is to manage distrust and suspicions while at the same time building trust and relationships. I conclude that corporations should adopt the compliance- based approach and the integrity-based approach simultaneously to reduce corporate wrongdoing.

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Robert J. Bies

In-Sourcing Corporate Responsibility for Enforcement of the Foreign Corrupt Practices Act

In this article I first review our nation’s long-standing and active aversion to corporate corruption overseas, as principally embodied in the FCPA. I then explain how achievement of the FCPA’s goals is undermined by the uncertainty in current federal enforcement policies and the consequent ambivalence toward selfdisclosure exhibited by multinational corporations. Finally, I argue that the only realistic way to make up the shortcomings in FCPA enforcement that flow from the Justice Department’s limited resources is to motivate corporations themselves to police corruption in their foreign subsidiaries by giving them a concrete incentive in the form of guaranteed immunity from corporate criminal liability, and by assuring them that the company will not be debarred from doing business with one of the largest of all potential clients—the United States government. This proposed policy of inducing corporations to be responsible for policing themselves in the public interest would be merely another instance of America’s historical practice of yoking the corporation to society’s plough.

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Larry D. Thompson

The Non-Conscious Aspects of Ethical Behavior: Not Everything in the "Good" Organization Is Deliberate and Intentional 

With regard to the ethical organization, it is generally understood that “good” organizations 1) establish ethical standards; 2) regularly make those standards salient; 3) monitor behavior; and 4) reward and punish accordingly. While it is typical to think of these processes as occurring at conscious levels, I will discuss research that suggests that each process can, and does, occur at non-conscious levels—that an ethical culture exists and influences employees in ways that neither management nor employees likely recognize. Then I will discuss the expectations that should circumscribe a “good” organization.

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Scott J. Reynolds

Reducing Corporate Criminality: the Role of Values 

This article will address the advantages of legitimacy as the central element in a regulatory strategy. I argue that legitimacy is a better strategy than the command and control approach widely used today, but that it is difficult to implement because the approaches to governing and exercising legal authority that most effectively build and maintain legitimacy run counter to the intuitions and preferences of many people in positions of authority.

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Tom R. Tyler

Encouraging Ethics in Organizations: A Review of Some Key Research Findings

I review a range of research in the organizational sciences that is relevant to understanding the influences on ethical and unethical behavior in organizations, with particular attention to factors that are relevant to the goal of fostering an ethical organiza- tional culture that can encourage the kind of organizational “commitment to compliance” that will be convincing and worthy of support from an individual employee’s perspective. I focus on three primary topics: (a) the nature and effectiveness of the ethics and compliance initiative itself; (b) the role of organiza- tional leaders (at all levels) in fostering ethical behavior; and (c) the implications of recent moral psychology research highlighting the non-deliberative, non- calculative nature of much moral thought and action.

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Gary R. Weaver

In Pursuit of Simple, Ordinary Justice

On any day except Sunday, you can walk a few blocks and visit the Superior Court for the District of Columbia. At the very bottom floor Courtroom C-10, down the hall from the cell block—where a U.S. Marshals poster reads “Let No Guilty Man Escape” below an image of a gallows—you’ll see men and women, escorted in one by one. But before you see them, you’ll hear them: that is, you’ll hear the jingling of their chains. They will stand below the judge and be told that the United States of America wants to convict them of a crime, forever changing their lives. Then the judge, the Assistant U.S. Attorney, and the defense lawyer will take about three minutes to decide if the defendant will sleep in his bed that night, or on a cot at the D.C. Jail. Listen to the clerk intone the litany of one case after another: “United States v. Smith, United States v. Jones, United States v. Johnson . . .”

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Robert F. Muse

Issue Two - Spring 2014

A Plea for Funds: Using PadillaLafler, andFrye to Increase Public Defender Resources

This Article will proceed by examining whether these three opinions create a bar too high for most public defender offices to meet. It also seeks to suggest the kinds of changes needed for public defender offices to meet these basic requirements. To do so, I will begin in Part II by discussing guilty pleas in general. I will then describe the legal landscape prior to Padilla,Lafler, and Frye in Part III, and discuss the three cases themselves and their ramifications in Part IV. In Part V, I will then introduce the requirements for effective assistance of counsel, and describe the best practices for public defenders to use during plea bargaining. In Part VI, I will discuss the problem of the overburdened public defender office. Finally, in Part VII, I will conclude by addressing how overburdened public defender offices might employ these cases to help ease their case loads.

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Vida B. Johnson

The Mandate of Miller

This Article argues for an extension of this Eighth Amendment protection to all cases in which a defendant faces the possibility of a death-in-custody sentence—a death sentence, a life-without-parole sentence, or a sentence with a term of years approaching the life expectancy of the offender. Accordingly, the mandate of Miller is that the Eighth Amendment should require courts to make individualized sentencing determinations and consider mitigating evidence before imposing a death-in-custody sentence.

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William W. Berry III

Copyright Infringement and the Separated Powers of Moral Entrepreneurship 

This Article proceeds in four parts. Part I briefly summarizes the literature on the role of social norms in shaping individuals’ decisions to comply with or violate the law. Part II outlines how current efforts to curb online copyright infringement represent a form of Beckerian moral entrepreneurship. Part III discusses two potential distributions of power over rule enforcement and an example of each: (A) aggregating it within the institutions that fought for new rules in the first place, represented by the RIAA’s litigation campaign against individual file-sharers; and (B) assigning it to the discretion of the state, represented by federal criminal prosecutions. Of these options, I argue that the former has been counterproductive in trying to entrench a broad social norm against infringement, while the latter has made headway in trying to articulate a narrower one. Part IV asks what preliminary takeaways the moral crusade over copyright infringement might offer for future moral entrepreneurs when social norms are in flux.

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Joseph P. Fishman


The Federalist Society for Law and Public Policy Studies 2012 National Lawyers Convention: The Foreign Corrupt Practices Act
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The Trial of Conrad Murray: Prosecuting Physicians for Criminally Negligent Over-Prescription

This Note will explore the various theories surrounding criminally negligent over-prescription, using the recent and highly-publicized outcome in the trial of Dr. Conrad Murray as a framing device. Through this discussion, it will argue that involuntary manslaughter prosecution is a necessary social mechanism to deter criminally negligent over-prescription, due to the absence of effective professional self-discipline by state medical boards. Part II will give a more detailed account of the circumstances leading to Michael Jackson’s death and Murray’s subsequent conviction. Part III will give a brief historical overview of the prosecution of physicians for involuntary manslaughter. Part IV will analyze the various legal bases for establishing criminal negligence in this type of situation. Finally, Part V will examine the policy questions which fuel the debate about imposing criminal liability for negligent over-prescription.

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Christopher J. Kim

Guarding the Rights of the Accused and Accuser: The Jury's Role in Awarding Restitution

The argument proceeds as follows. Part I describes the framework that the Court has erected for understanding and applying the Sixth Amendment jury trial right. Because the scope of the right relies heavily upon common law practice, Part II describes the common law procedures that historically applied to restitution. Based on that account, Part III argues that the Sixth Amendment jury trial right extends to criminal restitution and requires juries to find the facts affecting the amount of restitution owed by law. This section also sketches the boundaries of the right with respect to restitution. Finally, Part IV concludes.

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James Barta

State v. Robert: Why Mitigation Waivers During Capital Sentencing Undermine Fundamental Justifications of Punishment

This Note seeks to demonstrate that a defendant convicted of a capital offense should never have the right to subjugate the role of the judge or jury in capital sentencing by waiving the presentation of mitigation evidence regardless of whether the waiver was knowing and voluntary. Part I will consider the facts of State v. Robert, in order to better assess the background and motivation of Eric Robert, the actions taken by Robert’s counsel, and the court’s response to his death request. Part II will examine the development and purpose of mitigation evidence in the sentencing phase of a capital case as well as the legal jurisprudence governing waivers in the capital sentencing process. Part III will present a criticism of mitigation waivers and arguments favoring the capital defendant’s autonomy during sentencing by showing how such waivers undercut both retributivist and consequentialist goals of punishment.

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Adam L. Dulberg

Battling Domestic Violence: Replacing Mandatory Arrest Laws with a Trifecta of Preferential Arrest, Officer Education, and Batterer Treatment Programs

This Note posits that the Castle Rock decision presents an opportunity to attack domestic violence from a different angle, rather than an occasion to further enshrine mandatory arrest statutes. Part I will discuss the history of domestic violence law in the United States, the development of state law protection, and the birth of mandatory arrest statutes. Part II will argue that mandatory arrest statutes introduce major problems and should be replaced. To do so, the Part discusses several negative effects of mandatory arrest laws, including a lack of improvement in perpetrator behavior, the disempowerment of women, an increase in female arrests, particular threats to women with children, adverse effects on poor and minority communities, and various procedural problems. Finally, Part III will suggest a three-pronged strategy for effectively battling domestic violence: (A) preferential arrest statutes, (B) improved education of law enforcement officers regarding the seriousness of domestic violence, and (C) mandatory treatment programs for batterers.

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Amy M. Zelcer

Issue Three - Summer 2014

Kidnapping Incorporated: The Unregulated Youth-Transportation Industry and the Potential for Abuse

Strangers come into a child’s room in the middle of the night, drag her kicking and screaming into a van, apply handcuffs, and drive her to a behavior modification facility at a distant location. What sounds like a clear-cut case of kidnapping is complicated by the fact that the child’s parents not only authorized this intervention, but also paid for it. This scarcely publicized practice—known as the youth-transportation industry—operates on the fringes of existing law. The law generally presumes that parents have almost unlimited authority over their children, but the youth-transportation industry has never been closely examined regarding exactly what the transportation process entails or whether it is in fact legal.

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Ira P. Robbins

The Hitchhiker's Guide to the Fourth Amendment: The Plight of Unreasonably Seized Passengers Under the Heightened Factual Nexus Approach to Exclusion

The benefits of carpooling are well documented and widely known. Being a passenger, however, does not come without its perils, at least in terms of diminished Fourth Amendment protection. Over thirty years ago, the Supreme Court, in Rakas v. Illinois, established its current approach to Fourth Amendment standing in the context of suppressing the fruit of an unlawful search, holding that a defendant may seek suppression only if he has a “legitimate expectation of privacy in the particular areas” searched. Addressing the admissibility of evidence found during the search of a vehicle, the Court held that the petitioners, both of whom were “passengers occupying a car which they neither owned nor leased,” were unable to demonstrate a legitimate expectation of privacy in the vehicle. Therefore, the petitioners did not have standing to contest the legality of the search.

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Nadia B. Soree 

Abstract Risk and the Politics of the Criminal Law

Much of the criminal law contains what theorists call “abstract endangerment” statutes—laws that punish not actual, but hypothetical, creation of risk. For example, consider the criminalization of underage alcohol possession, ostensibly targeting the risk of irresponsible overconsumption: age does not necessarily imply immaturity, and possession does not necessarily lead to consumption. The crime is therefore doubly “abstract”: many violations will create no risk of harm at all but the conduct is nevertheless prohibited. Theoretical defenses of these overinclusive laws mainly emphasize the deficiencies of individuals in assessing their own risk. What these defenses implicitly assume, though, is that the entity the individual must defer to—the legislature—is itself superior at risk assessment. This Article attacks this supposition, and discusses the problematic features of legislative deliberation regarding risk in the criminal law. Many extraneous considerations often enter in, and certain inherent features of these bodies make them especially problematic. Defenders of abstract endangerment statutes, then, should not simply assume that the legislature is epistemically superior to the individual, and they bear a greater justificatory burden than they have satisfied thus far.

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Brenner M. Fissell 

Blind Injustice: The Supreme Court, Implicit Racial Bias, and the Racial Disparity in the Criminal Justice System

This Note begins with an overview of the racial disparity in the American criminal justice system. Part II gives a brief introduction to implicit racial bias, while Part III summarizes the limited research that has been conducted thus far to document its influence on criminal justice actors. Part IV analyzes the key decisions of the Court that have permitted and exacerbated the impact of implicit racial bias on the justice system, culminating in Part V, which shows the cumulative effects of the Court’s decisions by analyzing the New York Police Department’s “stop-and-frisk” policy and one federal judge’s struggle to curtail that policy’s racially disparate impact in light of the Supreme Court’s precedents. Finally, Part VI argues that the Court should begin to address the reality of implicit racial bias by reigning in criminal justice actors’ discretion and by refocusing its equal protection analysis on disparate impact rather than intent.

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John Tyler Clemons

Calling For A Standard: Why Court Should Apply A New Balancing Test in Cell Phone Searches Incident to Arrest

Part I of this Note provides background on the search incident to arrest exception to the Fourth Amendment. Part II analyzes the history of cell phone searches and many of the rationales courts have used in permitting or prohibiting warrantless searches of cell phones incident to arrest. Part III suggests how the Supreme Court should resolve the issue of warrantless cell phone searches and explains why a balancing test would be the best option for a rapidly developing technology like cell phones.

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Drew Liming

Bringing the Gavel Down on Stops and Frisks: The Equitable Regulation of Police Power

Part I of this Note will provide background and context for understanding the question of the limits of preemptive policing at issue in Floyd. Part II will examine how the Floyd plaintiffs cleared a series of formidable procedural hurdles to acquire the information necessary to render a compelling argument to the court that the NYPD had a policy of violating the Fourth Amendment rights of black and Hispanic New Yorkers. Part III will explore the Floydcourt’s Fourteenth Amendment holding that the racial disparities in the raw data were actually the result of intentional discrimination by the NYPD. Part IV will analyze the unique qualifications of the 23(b)(2) class action lawsuit as a device for pursuing social reform through litigation. Part V will explore the regulatory scheme promulgated by the Floyd court and examine whether and how it might reduce the unconstitutional use of stop and frisk tactics. Because it is inextricable from a consideration of the probable effect of the Floyd court’s ruling and profoundly relevant to the theoretical justification for the use of the class action lawsuit as a mechanism for social justice, Parts IV and V will focus on the interplay of the judiciary and civil society in litigation that facilitates constitutional argument to achieve sociological objectives.

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William A. Margeson

Irrevocable Implied Consent: The "Roach Motel" in Consent Search Jurisprudence

This Note discusses the implications of an irrevocable implied consent search doctrine. Part I discusses the constitutional underpinnings of the consent search doctrine, how it compares to other exceptions to the Fourth Amendment, and why it is a popular doctrine among law enforcement agents. Part II discusses instances where implied consent can serve as permissible grounds for a search. Part III discusses the importance of withdrawal to the consent search doctrine. Part IV discusses the implications of an irrevocable, implied consent search doctrine. Part V discusses viable alternatives to irrevocable, implied consent.

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Christopher M. Peterson