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Full-Text Articles in Law
The Possibility Of Prosecuting Corporations For Climate Crimes Before The International Criminal Court: All Roads Lead To The Rome Statute?, Donna Minha
Michigan Journal of International Law
Due to rapid developments in climate science, scientists are now able to quantifiably link significant greenhouse gas emissions caused by major oil and gas corporations to specific climate impacts. These scientific advances have been accompanied by the publication of documents and studies suggesting that the oil and gas industry allegedly had knowledge of climate change as early as sixty years ago, and yet it actively worked to promote climate change denial and to delay governmental regulation on this matter. Though climate-related litigation is proceeding against the industry in different jurisdictions, proceedings brought against oil and gas corporations mainly focus on …
Promoting Predictability In Business: Solutions For Overlapping Liability In International Anti-Corruption Enforcement, Andrew T. Bulovsky
Promoting Predictability In Business: Solutions For Overlapping Liability In International Anti-Corruption Enforcement, Andrew T. Bulovsky
Michigan Journal of International Law
This Note evaluates solutions to the problems of overlapping liability in general and multi-jurisdictional disgorgement in particular. Part I traces the origins of international anti-corruption efforts and provides an overview of the Foreign Corrupt Practices Act (the “FCPA”). It then discusses the two most significant international anti-corruption conventions: the OECD’s Convention on Combatting Bribery of Foreign Officials in International Business Transactions (the “OECD Convention”) and the United Nations Convention Against Corruption (“UNCAC”). Part II lays out the problems created by the lack of a formal mechanism to prevent overlapping liability— a phenomenon that violates the common law concept known as …
Humanizing The Corporation While Dehumanizing The Individual: The Misuse Of Deferred-Prosecution Agreements In The United States, Andrea Amulic
Humanizing The Corporation While Dehumanizing The Individual: The Misuse Of Deferred-Prosecution Agreements In The United States, Andrea Amulic
Michigan Law Review
American prosecutors routinely offer deferred-prosecution and nonprosecution agreements to corporate defendants, but not to noncorporate defendants. The drafters of the Speedy Trial Act expressly contemplated such agreements, as originally developed for use in cases involving low-level, nonviolent, noncorporate defendants. This Note posits that the almost exclusive use of deferrals in corporate cases is inconsistent with the goal that these agreements initially sought to serve. The Note further argues that this exclusivity can be attributed to prosecutors’ tendency to only consider collateral consequences in corporate cases and not in noncorporate cases. Ultimately, this Note recommends that prosecutors evaluate collateral fallout when …
Too Vast To Succeed, Miriam H. Baer
Too Vast To Succeed, Miriam H. Baer
Michigan Law Review
If sunlight is, in Justice Brandeis’s words, “the best of disinfectants,” then Brandon Garrett’s latest book, Too Big to Jail: How Prosecutors Compromise with Corporations might best be conceptualized as a heroic attempt to apply judicious amounts of Lysol to the murky world of federal corporate prosecutions. “How Prosecutors Compromise with Corporations” is the book’s neutral- sounding secondary title, but even casual readers will quickly realize that Garrett means that prosecutors compromise too much with corporations, in part because they fear the collateral consequences of a corporation’s criminal indictment. Through an innovation known as the Deferred Prosecution Agreement, or DPA, …
What Common Law And Common Sense Teach Us About Corporate Cybersecurity, Stephanie Balitzer
What Common Law And Common Sense Teach Us About Corporate Cybersecurity, Stephanie Balitzer
University of Michigan Journal of Law Reform
This Note examines the challenges of corporate cyberdefense and suggests an approach to mitigate them. Part I outlines the background of the corporate cyberdefense quandary and various cyberdefense strategies. Part II explores the current landscape of cybersecurity law in the United States and the regulatory infrastructure that governs cybercrimes. Part II also surveys case law that illustrates the legal loopholes and ambiguities corporations face when implementing cybersecurity measures. Finally, Part III argues that the proposed active defense model fails to comport with practical concerns and established legal principles. This Note’s comparative analysis of common law ‘defense of property’ principles and …
Toward Greater Guidance: Reforming The Definitions Of The Foreign Corrupt Practices Act, Matthew W. Muma
Toward Greater Guidance: Reforming The Definitions Of The Foreign Corrupt Practices Act, Matthew W. Muma
Michigan Law Review
The Foreign Corrupt Practices Act of 1977 is the cornerstone of the United States’ efforts to combat the involvement of U.S. companies and individuals in corruption abroad. Enforced by both the Securities and Exchange Commission (“SEC”) and the Department of Justice (“DOJ”), the Act targets companies and individuals that pay bribes to “foreign officials,” a nebulous category of persons that includes everyone from foreign cabinet members to janitors at companies only partially owned by a foreign state. After only sporadic enforcement in the early years of the Act’s existence, the SEC and DOJ now bring many cases annually. This increased …
Deferred Prosecution And Non-Prosecution Agreements And The Erosion Of Corporate Criminal Liability, David M. Uhlmann
Deferred Prosecution And Non-Prosecution Agreements And The Erosion Of Corporate Criminal Liability, David M. Uhlmann
Articles
On April 5, 2010, a massive explosion killed twenty-nine miners at Massey Energy's Upper Big Branch mine near Montcoal, West Virginia. Following the explosion, President Barack Obama vowed that the U.S. Department of Labor would conduct "the most thorough and comprehensive investigation possible" and work with the U.S. Department of Justice ("Justice Department" or the "Department") to address any criminal violations. Later in the month, the President and Vice President flew to West Virginia to eulogize the victims and comfort their families. It was the nation's worst coal mining disaster in forty years. The tragic loss of life at the …
After The Spill Is Gone: The Gulf Of Mexico, Environmental Crime, And Criminal Law, David M. Uhlmann
After The Spill Is Gone: The Gulf Of Mexico, Environmental Crime, And Criminal Law, David M. Uhlmann
Articles
The Gulf oil spill was the worst environmental disaster in U.S. history, and will be the most significant criminal case ever prosecuted under U.S. environmental laws. The Justice Department is likely to prosecute BP, Transocean, and Halliburton for criminal violations of the Clean Water Act and the Migratory Bird Treaty Act, which will result in the largest fines ever imposed in the United States for any form of corporate crime. The Justice Department also may decide to pursue charges for manslaughter, false statements, and obstruction of justice. The prosecution will shape public perceptions about environmental crime, for reasons that are …
Crimes On The Gulf, David M. Uhlmann
Crimes On The Gulf, David M. Uhlmann
Articles
The explosion that rocked the Deepwater Horizon oil rig on April 20, 2010, killed 11 workers and triggered the worst environmental disaster in U.S. history. After six weeks of failed efforts to stop the gushing oil and protect the fragile ecosystem of the Gulf of Mexico and the communities along its shores, President Obama pledged on June 1 that “if our laws were broken . . . we will bring those responsible to justice.”
Prosecuting Worker Endangerment: The Need For Stronger Criminal Penalties For Violations Of The Occupational Safety And Health Act, David M. Uhlmann
Prosecuting Worker Endangerment: The Need For Stronger Criminal Penalties For Violations Of The Occupational Safety And Health Act, David M. Uhlmann
Articles
A recent spate of construction deaths in New York City, similar incidents in Las Vegas, and scores of fatalities in recent years at mines and industrial facilities across the country have highlighted the need for greater commitment to worker safety in the United States and stronger penalties for violators of the worker safety laws. Approximately 6,000 workers are killed on the job each year1—and thousands more suffer grievous injuries—yet penalties for worker safety violations remain appallingly small, and criminal prosecutions are almost non-existent. In recent years, most of the criminal prosecutions for worker safety violations have been brought by the …
Environmental Crime Comes Of Age: The Evolution Of Criminal Enforcement In The Environmental Regulatory Scheme, David M. Uhlmann
Environmental Crime Comes Of Age: The Evolution Of Criminal Enforcement In The Environmental Regulatory Scheme, David M. Uhlmann
Articles
The Rivers and Harbors Act of 1899 often is considered the first environmental criminal statute because it contains strict liability provisions that make it a misdemeanor to discharge refuse into navigable waters of the United States without a permit. When Congress passed the Rivers and Harbors Act, however, it was far more concerned with preventing interference with interstate commerce than environmental protection. For practical purposes, the environmental crimes program in the United States dates to the development of the modem environmental regulatory system during the 1970s, and amendments to the environmental laws during the 1980s, which upgraded criminal violations of …
The Yukos Money Laundering Case: A Never-Ending Story, Dmitry Gololobov
The Yukos Money Laundering Case: A Never-Ending Story, Dmitry Gololobov
Michigan Journal of International Law
The Yukos case has unveiled the possible dangers of money laundering legislation in the hands of governments with transitional economies and weak democratic traditions. Even if the anti-money laundering laws of the country comply with international pronouncements to the letter, there are still a number of ways the laws could be used for the sole purpose of persecuting political opponents. In the Yukos case, the money laundering charges were interrelated with the charges of corporate tax evasion, which, taken separately, in Russia, represent a rather weak tool for suppressing the political opponents, but taken together they are perfect for the …
Corporate Defendants And The Protections Of Criminal Procedure: An Economic Analysis, Vikramaditya S. Khanna
Corporate Defendants And The Protections Of Criminal Procedure: An Economic Analysis, Vikramaditya S. Khanna
Law & Economics Working Papers Archive: 2003-2009
Corporations are frequently treated as “persons” under the law. One of the fundamental questions associated with this treatment is whether corporations should receive the same Constitutional protections and guarantees as natural persons. In particular, should corporations receive the Constitutional protections of Criminal Procedure? After all, corporations cannot be sent to jail so the sanctions they face are essentially the same as in civil proceedings. If so, then why not have the same procedural protections for corporate defendants in civil and criminal cases? Little scholarly analysis has focused on this issue from an economic perspective and this article aims to fill …
Competition, Corporate Responsibility, And The China Question, Jospeh Vining
Competition, Corporate Responsibility, And The China Question, Jospeh Vining
Other Publications
"Corporate responsibility" is not a peripheral matter. It is at the core of all decision-making on behalf of business corporations under American law. This paper examines the effort to add an exemption for "business" in corporate form to the exemptions from ordinary responsibility that are seen in other areas of activity - e.g., for the military, for lawyers in adversarial litigation, or for investigators in scientific research. It looks at a number of well known cases and points to the often neglected relevance of both the criminal law applicable to corporations as such, and the evolving professional responsibility of corporate …
Corporations, Criminal Law And The Color Of Money, Joseph Vining
Corporations, Criminal Law And The Color Of Money, Joseph Vining
Articles
This part of From Newton's Sleep, published by Princeton University Press in 1995 and in a paperback edition in early 1997, is reprinted by permission of the publisher. From Newton's Sleep is a book on the legal form of thought and its meaning for science and religion. It consists of some two hundred and fifty self-contained pieces arranged in eight sections. In its form, the book is much like and is meant to be much like the material with which lawyers routinely deal. Here, Law Quadrangle Notes excerpts a piece that touches on a subject of lively debate today, among …
Masters Of Paradise: Organized Crime And The Internal Revenue Service In The Bahamas, Mary Lorenz Dietz
Masters Of Paradise: Organized Crime And The Internal Revenue Service In The Bahamas, Mary Lorenz Dietz
Michigan Journal of International Law
Review of the book by Alan A. Block
Enforced Self-Regulation: A New Strategy For Corporate Crime Control, John Braithwaite
Enforced Self-Regulation: A New Strategy For Corporate Crime Control, John Braithwaite
Michigan Law Review
Part I outlines the concept of enforced self-regulation, sketches its theoretical underpinnings, and illustrates its application in the context of corporate accounting standards. Part II argues the merits of enforced self-regulation. Part III dispels notions that the proposal is a radical departure from existing regulatory practice and points to areas in which necessary empirical research could be conducted by discussing incipient manifestations of partial enforced self-regulation models in the aviation, mining, and pharmaceutical industries. Part IV considers in some detail the weaknesses of the proposed model. The final Part considers the importance of determining an optimal mix of regulatory strategies; …
The Criminal Liability Of Corporations And Other Groups: A Comparative View, L. H. Leigh
The Criminal Liability Of Corporations And Other Groups: A Comparative View, L. H. Leigh
Michigan Law Review
Briefly, three positions concerning corporate liability may be identified. First, there are systems of full corporate criminal liability, such as those in England and the United States. Second, there are systems that recognize only partial corporate criminal liability, for example Denmark, Belgium, and France. Finally, some systems do not permit such liability at all, or permit it only under the guise of administrative offenses. Italy and West Germany afford examples of this restrictive view of corporate liability.
This Article will sketch each of these positions in some detail, beginning, in Part I, with those systems that authorize full liability. Part …
Toward Understanding Unlawful Organizational Behavior, Diane Vaughan
Toward Understanding Unlawful Organizational Behavior, Diane Vaughan
Michigan Law Review
The emergence and growth of regulatory agencies charged with controlling organizational misconduct has been so widespread that the monitoring and regulation of corporate interactions has itself become "big business," with the complexity of the regulatory agencies at times matching or even exceeding that of the organizations they regulate. The effectiveness of these efforts to control unlawful organizational behavior has been assessed in many different ways. The records of agency investigations, administrative hearings, and judicial proceedings provide data on enforcement actions, court decrees, trials, convictions, penalties, and other indicators that allow empirical estimates to be made. A realistic assessment of agency …
The Sentencing Of White-Collar Criminals In Federal Courts: A Socio-Legal Exploration Of Disparity, Ilene H. Nagel, John L. Hagan
The Sentencing Of White-Collar Criminals In Federal Courts: A Socio-Legal Exploration Of Disparity, Ilene H. Nagel, John L. Hagan
Michigan Law Review
This Article addresses that question by examining judicial sentencing philosophy as applied to white-collar criminality and reporting data that illuminate the operation of that philosophy. Part I of the Article argues that the traditional purposes and limits of criminal sentencing may plausibly justify either disparate or comparable sentences in cases of white-collar and common criminality. Part II describes the obstacles to an accurate empirical inquiry into how judges resolve these uncertainties in the theory of punishment. Part III presents a study designed to overcome as many of these obstacles as possible. What is most dramatic is that the resulting data …
The Organization As Weapon In White-Collar Crime, Stanton Wheeler, Mitchell Lewis Rothman
The Organization As Weapon In White-Collar Crime, Stanton Wheeler, Mitchell Lewis Rothman
Michigan Law Review
This Article explores the advantages of using organization or occupation in the more typical case. Our inquiry takes this as its central question: What difference does it make when a white-collar crime is committed in the course of one's occupation or when acting on behalf, or with the assistance, of an organization? If we are becoming, as some have argued, an organizational society, then we should see the results of this change reflected in illicit as well as licit behavior. The organizational form may be used for either social or antisocial ends. Our principal hypothesis, as the title suggests, is …
Corporate Crime, Michigan Law Review
Corporate Crime, Michigan Law Review
Michigan Law Review
A Review of Corporate Crime by Marshall B. Clinard and Peter C. Yeager