Criminal Law Commons^™

The Compliance Process, Veronica Root Martinez

Veronica Root

Even as regulators and prosecutors proclaim the importance of effective compliance programs, failures persist. Organizations fail to ensure that they and their agents comply with legal and regulatory requirements, industry practices, and their own internal policies and norms. From the companies that provide our news, to the financial institutions that serve as our bankers, to the corporations that make our cars, compliance programs fail to prevent misconduct each and every day. The causes of these compliance failures are multifaceted and include general enforcement deficiencies, difficulties associated with overseeing compliance programs within complex organizations, and failures to establish a culture of …

The Yates Memo: Looking For "Individual Accountability" In All The Wrong Places, Katrice Bridges Copeland

Katrice Bridges Copeland

The Department of Justice has received a great deal of criticism for its failure to prosecute both corporations and individuals involved in corporate fraud. In an effort to quiet some of that criticism, on September 9, 2015, then Deputy Attorney General Sally Q. Yates issued a policy entitled, "Individual Accountability for Corporate Wrongdoing," or the "Yates Memo," as it has been called. The main thrust of the Yates Memo is that in order for a corporation to receive any credit for cooperating with the government and obtain leniency in the form of a deferred prosecution agreement, the corporation must not …

Voluntary Disclosure Fostering Overenforcement And Overcriminalization Of The Fcpa, Karen E. Woody

Karen Woody

Professor Peter Reilly’s article, Incentivizing Corporate America to Eradicate Transnational Bribery Worldwide: Federal Transparency and Voluntary Disclosure Under the Foreign Corrupt Practices Act, 67 Fla. L. Rev. 1683 (2015), challenges the notion that voluntary disclosure of potential Foreign Corrupt Practices Act (FCPA) violations to the government is always the best course of action for a company. In a world where whistleblowers can receive a bounty for information provided to the Securities and Exchange Commission (SEC),2 self-reporting is a critical, high-pressure decision that each company must undertake when faced with potential FCPA liability.

This Article takes a broader look at …

No Smoke And No Fire: The Rise Of Internal Controls Absent Anti-Bribery Violations In Fcpa Enforcement, Karen E. Woody

Karen Woody

The Foreign Corrupt Practices Act (FCPA) prohibits bribery of foreign public officials in order to obtain or retain business. It is, for all intents and purposes, an anti-bribery statute. To detect bribery, the FCPA contains accounting provisions related to bookkeeping and internal controls. The books and records provision requires issuers to make and maintain accurate books, records, and accounts; likewise, the internal controls provision requires that issuers devise and maintain reasonable internal accounting controls aimed at preventing and detecting FCPA violations. If one considers the analogy that bribery is the “fire” in FCPA enforcement actions, and books and records violations …

Preserving The Corporate Attorney-Client Privilege, Katrice Copeland

Katrice Bridges Copeland

This Article argues that, while legislation such as the Attorney-Client Privilege Protection Act ("ACPPA") is necessary to preserve that corporate attorney-client privilege, any such legislation must include judicial oversight to deter prosecutorial misconduct effectively. Part II examines the costs and benefits of granting corporations the attorney-client privilege in criminal investigations. It concludes that the benefits of the privilege fat outweigh the costs and that the privilege must be safeguarded from unnecessary infringement. Part III traces the evolution of the DOJ's waiver policies that have threatened the corporate attorney-client privilege. It also examines the costs and benefits of the waiver policy …

The Corporate Conspiracy Vacuum (Formerly "Corporate Conspiracy: How Not Calling A Conspiracy A Conspiracy Is Warping The Law On Corporate Wrongdoing"), J.S. Nelson

J.S. Nelson

Corporate America Fights Back: The Battle Over Waiver Of The Attorney-Client Privilege, Michael L. Seigel

Michael L Seigel

This Article addresses a topic that is the subject of an on-going and heated contest between the business lobby and its lawyers, on the one side, and the U.S. Department of Justice on the other. The fight is over federal prosecutors' escalating practice of requesting that corporations accused of criminal wrongdoing waive their attorney-client privilege as part of their cooperation with the government. The Department of Justice views privilege waiver as a legitimate and critical tool in its post-Enron battle against white collar crime. The business lobby views it as encroaching on corporations' fundamental right to protect confidential attorney-client communications. …

Unfit For Duty: The Officer And Director Bar As A Remedy For Fraud, Renee Jones

Renee Jones

Many commentators have questioned the efficacy of the SEC’s enforcement program in the aftermath of the 2008 financial crisis. Some criticize the agency for allowing corporate defendants to settle charges without admitting or denying liability. Others dispute the impact of astronomical fines levied against too-big-to-fail financial institutions. Still others urge prosecutors to bring criminal charges against those who led the failed financial firms to ruin. This Article, written for a symposium on SEC enforcement, focuses attention on an underutilized weapon in the SEC’s arsenal: the power to bar officers and directors of public companies from future service in such roles. …

Crossing The Fault Line In Corporate Criminal Law, Amy Sepinwall

Amy J. Sepinwall

Why is it that so few bankers have been prosecuted and punished in the wake of the financial meltdown? Pundits are quick to point to inadequate funding for addressing financial crime or, more cynically, the revolving door between government regulatory agencies and Wall Street. But the ultimate answer may be at once more banal and more dispiriting, lying as it does at the very foundations of our criminal law.

The conception of responsibility underpinning much of our criminal law contemplates the individual in isolation from others. As a result, our criminal law has tremendous difficulty tracking culpability in organizational contexts. …

Responsible Shares And Shared Responsibility: In Defense Of Responsible Corporate Officer Liability, Amy Sepinwall

Amy J. Sepinwall

When a corporation commits a crime, whom may we hold criminally liable? One obvious set of defendants consists of the individuals who perpetrated the crime on the corporation’s behalf. But according to the responsible corporate officer (“RCO”) doctrine, the government may also prosecute and punish those corporate executives who, although perhaps lacking “consciousness of wrongdoing,” nonetheless have “a responsible share in the furtherance of the transaction which the statute outlaws.” In other words, under the RCO doctrine, a corporate executive can come to bear criminal responsibility for an offense of her corporation that she neither participated in nor culpably failed …

Did Congress Intend For Corporations To Benefit From The Mvra? A Look At The Legislative History Of The Mandatory Victims Restitution Act Of 1996 And The Courts’ Application Of The Mvra To Corporations, Leslie M. Villacis

Leslie M. Villacis

This paper reflects upon the legislative interpretation of the Mandatory Victims Restitution Act of 1996 as well as the differing interpretations of the federal statute by numerous courts across the United States in order to explore whether there was a Congressional intent for corporations to benefit from the statute. The paper begins this discussion by introducing the MVRA's most recent application by the Southern District Court of New York in United States v. Gupta.

Deterrence Theory And The Corporate Criminal Actor: Professor Utset's Fresh Take On An Old Problem, Daniel S. Medwed

Daniel S. Medwed

This essay comments on Professor Manuel Utset's latest work in the area of corporate criminal conduct and time-consistent preferences. The essay praises Professor Utset for developing a strong theoretical basis for justifying the external regulation of corporate actors, but also addresses another implication of his theory -- that it has salience in warranting greater internal regulation as well.

The Curious Case Of Corporate Criminality, Erik Luna

Erik Luna

No abstract provided.

Professional Ethics In Interdisciplinary Collaboratives: Zeal, Paternalism And Mandated Reporting, Alexis Anderson, Lynn Barenberg, Paul R. Tremblay

Paul R. Tremblay

In this Article, the authors, two clinical law teachers and a social worker teaching in the clinic, wrestle with some persistent questions that arise in cross-professional, interdisciplinary law practice. In the past decade much writing has praised the benefits of interdisciplinary legal practice, but many sympathetic skeptics have worried about the ethical implications of lawyers working with nonlawyers, such as social workers and mental health professionals. Those worries include the difference in advocacy stances between lawyers and other helping professionals, and the mandated reporting requirements that apply to helping professionals but usually not to lawyers. This Article addresses those concerns …

Palliative Care. An Enforceable Canadian Human Right?, Darcy L. Macpherson

Darcy L MacPherson

This article lays out a series of approaches for establishing an enforceable human right to palliative care in Canada. The article first examines international human rights instruments to which Canada is a signatory, and concludes that they offer limited assistance to palliative care advocates. The article then examines two promising Charter challenges. The first, based on section 15, argues that since palliative care is provided unevenly to those who require it, the equality provisions of the Charter could compel equitable provision of palliative care to Canadians with life-limiting illnesses. The second is based on section 7, and argues that failure …

Falling Short: Has The Sec’S Quest To Control Market Manipulation And Abusive Short-Selling Come To An End Or Has It Really Just Begun?, Richard Ramirez

Richard E. Ramirez, J.D. | CFCS

No abstract provided.

Requirements Of A Valid Islamic Marriage Vis-À-Vis Requirements Of A Valid Customary Marriage In Nigeria, Olanike Sekinat Odewale Mrs

Olanike Sekinat Adelakun

Third Party Access And Refusal To Deal In European Energy Networks: How Sector Regulation And Competition Law Meet Each Other, Michael Diathesopoulos

Michael Diathesopoulos

In this paper, we will analyse the issue of concurrence between competition and sector rules and the relation between parallel concepts within the two different legal frameworks. We will firstly examine Third Party Access in relation to essential facilities doctrine and refusal of access and we will identify the common points and objectives of these concepts and the extent to which they provide a context to each other’s implementation. Second, we will focus on how Commission uses sector regulation and objectives as a context within the process of implementation of competition law in the energy sector and third, we will …

‘Organizational’ Criminal Liability Of Partnerships In Canada: Constitutional And Practical Impediments, Darcy Macpherson

Darcy L MacPherson

No abstract provided.

Individual Liability Of Company Officers, Neil J. Foster

Neil J Foster

It has been recognised for some time that a key strategy in changing corporate behaviour is the possibility of personal liability being sheeted home to individual company officers. This paper argues for the desirability of laws imposing personal liability, discusses the operation of law imposing such liability in the law of occupational health and safety in the UK, and compares that law with the operation of similar law in another common law jurisdiction, the Australian State of New South Wales. It is hoped that the comparison and review of the fairly extensive case law which has developed under the NSW …

The Legislature Strikes Back: The Effect Of Ontario’S Bill 152 On The Beneficiaries Of The Statutory Duty Of Care In The Peoples Decision, Darcy L. Macpherson

Darcy L MacPherson

No abstract provided.

Disability Through The Eyes Of The Law: A Review Of Federalism, Democracy And Disability Policy In Canada, Darcy L. Macpherson

Darcy L MacPherson

This piece reviews Federalism, Democracy and Disability Policy in Canada, an edited collection of essays dealing with various aspect of disability policy issues through the lens of the relationship between the levels of government in Canada

Cyber Crimes And Effectiveness Of Laws In India To Control Them, Mubashshir Sarshar

Mubashshir Sarshar

No abstract provided.

A Judicial Loudmouth With A Quiet Legacy: A Review Of Emmett Hall: Establishment Radical, Darcy L. Macpherson

Darcy L MacPherson

This is a review of the book Emmett Hall: Establishment Radical, 2nd ed.

The Supreme Court Restates Directors’ Fiduciary Duty – A Comment On Peoples Department Stores Inc. V. Wise, Darcy Macpherson

Darcy L MacPherson

No abstract provided.

Extending Corporate Criminal Liability: Some Thoughts On Bill C-45, Darcy Macpherson

Darcy L MacPherson

On 7 November 2003, Royal Assent was given to Bill C-45, An Act to Amend the Criminal Code (criminal liability of organizations). This legislation aims to broaden the criminal liability of corporations and other organizations in two significant ways. First, it expands the basis for corporate criminal liability beyond the existing common law; second, it extends to non-corporate organizations criminal liability previously limited to corporations. Bill C-45 will apply to all fault-based offences occurring on or after 31 March 2004, it does not apply to offences of either absolute or strict liability. This paper will discuss the most crucial changes …

“The Relevance Of Prior Record In The Criminal Law: A Response To The Theory Of Professor Von Hirsch”, Darcy Macpherson

Darcy L MacPherson

No abstract provided.

Federal Courts — Proposed Changes To The Ninth Circuit And The Federal Courts Of Appeals — Final Report Of The Commission On Structural Alternatives For The Federal Courts Of Appeals; And S. 253, The Ninth Circuit Reorganization Act, Josephine Sandler Nelson

J.S. Nelson

No abstract provided.