Corporate Conspiracy: How Not Calling A Conspiracy A Conspiracy Is Warping The Law On Corporate Wrongdoing, Josephine Sandler Nelson
The intracorporate conspiracy doctrine immunizes an enterprise and its agents from conspiracy prosecution based on the legal fiction that an enterprise and its agents are a single actor incapable of the meeting of two minds to form a conspiracy. The doctrine, however, misplaces incentives in contravention of agency law, criminal law, tort law, and public policy. As a result, harmful behavior is ordered and performed without consequences, and the victims of the behavior suffer without appropriate remedy.
Especially in the wake of the financial crisis, prosecutors and the public are searching for new tools to combat corporate conspiracy. The most ...
The Temptation Of Common Sense, 2014 SelectedWorks
The Temptation Of Common Sense, Curtis E.A. Karnow
Curtis E.A. Karnow
The fallacies of invoking arguments from ‘common sense’ in legal briefs.
Proactive Gatekeepers: The Jurisprudence Of The Icc’S Pre-Trial Chambers, 2014 SelectedWorks
Proactive Gatekeepers: The Jurisprudence Of The Icc’S Pre-Trial Chambers, Christodoulos Kaoutzanis, Jocelyn Joan Courtney
Due to the fairly recent inception of the International Criminal Court (“ICC), its
Pre-Trial Chambers has been the only judicial body at the ICC thus far to be exposed to
a wide variety of cases. In the seven years since Pre-Trial Chamber I held the
proceedings against the confirmation of charges against Thomas Lubanga Dyilo, the
ICC’s two Pre-Trial Chambers have conducted hearings and determined the charges
against 14 individuals for crimes allegedly committed in four Situations. This article
systematically classifies the jurisprudence of the Pre-Trial Chambers in an attempt to
identify the trends that cut across the Pre-Trial ...
Discretion Abused: Reinterpreting The Appellate Standard Of Review For Hearsay, 2014 SelectedWorks
Discretion Abused: Reinterpreting The Appellate Standard Of Review For Hearsay, Matthew J. Peterson
Matthew J. Peterson
Matthew J. Peterson, Discretion Abused: Reinterpreting the Appellate Standard of Review for Hearsay
The decision by a federal a court to exclude or admit hearsay can be crucial to the case of either party. Despite this prospective impact, the federal courts of appeal currently defer to district courts’ expertise by reviewing a district court’s decision to admit or exclude hearsay for an abuse of discretion. Such deference often insulates district courts’ incorrect interpretation of the rule against hearsay and the improper application of the exclusions and exceptions to the rule from appellate reversal.
Lowering the standard of review ...
“Far From The Turbulent Space”: Considering The Adequacy Of Counsel In The Representation Of Individuals Accused Of Being Sexually Violent Predators, Michael L. Perlin, Heather Ellis Cucolo
Michael L Perlin
For the past thirty years, the US Supreme Court's standard of Strickland v. Washington has governed the question of adequacy of counsel in criminal trials. There, in a Sixth Amendment analysis, the Supreme Court acknowledged that simply having a lawyer assigned to a defendant was not constitutionally adequate, but that that lawyer must provide "effective assistance of counsel," effectiveness being defined, pallidly, as requiring simply that counsel's efforts be “reasonable” under the circumstances. The benchmark for judging an ineffectiveness claim is simply “whether counsel’s conduct so undermined the proper function of the adversarial process that the ...
The Death Of Inference, 2014 Boston College Law School
The Death Of Inference, Andrew S. Pollis
Boston College Law Review
This Article examines a disturbing trend in civil litigation: the demise of the jury’s historic prerogative to draw inferences from circumstantial evidence. Judges have arrogated to themselves the power to dismiss cases if they find the proffered inferences factually implausible. They have increasingly dismissed cases under the “equal-inference rule” by finding the proffered inferences no more plausible than other available inferences. And they have severely limited the powerful inferences jurors can draw when they conclude that a witness has lied. Commentators have bemoaned the heightened-pleading standard of the 2007 and 2009 U.S. Supreme Court cases, Bell Atlantic Corp ...
The Scarlet Letter: Why Courts’ Reliance On Recidivist Statutes During Sentence Enhancement Hearings May Create Fifth And Eighth Amendment Violations, Jesse S. Weinstein
No abstract provided.
Analogical Legal Reasoning: Theory And Evidence, 2014 Georgetown University Law Center
Analogical Legal Reasoning: Theory And Evidence, Joshua C. Teitelbaum
Georgetown Law Faculty Publications and Other Works
The paper offers a formal model of analogical legal reasoning and takes the model to data. Under the model, the outcome of a new case is a weighted average of the outcomes of prior cases. The weights capture precedential influence and depend on fact similarity (distance in fact space) and precedential authority (position in the judicial hierarchy). The empirical analysis suggests that the model is a plausible model for the time series of U.S. maritime salvage cases. Moreover, the results evince that prior cases decided by inferior courts have less influence than prior cases decided by superior courts.
Evidence And The Pursuit Of Truth In The Law, 2014 SelectedWorks
Evidence And The Pursuit Of Truth In The Law, Jeffery L. Johnson
Jeffery L Johnson
Lawyers should be much more concerned with the concepts of truth and evidence. The entire profession depends on truth. It is what police detectives, District Attorneys, juries, trial judges, appellate judges, and academic lawyers offering interpretive theories, are all concerned with. But, since truth is seldom apparent on its sleeve, these legal actors are equally dependent on evidence as the only(?) reliable(?) means of determining truth. I defend a commonsensical theory of [good] evidence. I argue that this view, inference to the best explanation, captures most, if not all, of a lawyer’s appeal to evidence. It is far from ...
Impropriety’S Invisible Hand: Judicial Race And Gender Biases Within State Supreme Courts, Robert K. Christensen, John Szmer, Anthony M. Kreis
No abstract provided.
Language And Power In A Place Of Contingencies: Law And The Polyphony Of Self-Representation, Jonathan Yovel
New York University Public Law and Legal Theory Working Papers
How does language mediate action, communication and relations in legal settings not "contaminated" by the mediation of professional counsel? What is its interaction with, and what does it do to the concerns that drove litigants to seek institutional justice in the first place (or are cast into defensive roles?) How to approach these question in the context of communities diversified by ethnicity, gender, language, religion, education, income, age — whose members nevertheless meet in the same courtroom, where they must speak to authority as well as to each other in the role of institutional antagonists?
This paper, presenting empirical and interpretative ...
Chinese Courts' Role In Financial Reform: On The First "Vam Agreement" Case In China, Siyi Huang
Traditional belief is that courts in authoritarian regimes are only passive institutions and their authority and influence are extremely limited. Despite the conventional wisdom, it’s been noticed that Chinese courts have played a crucial role in China’s financial reform. Drawing on insights from the judgments of three Chinese courts at different levels on the first “value adjustment mechanism” case in China, this article attempts to explore the functional techniques and decision-making process of Chinese courts. The analysis of the court’ judgments suggests that Chinese courts have performed a policy-making function in deciding controversial economic cases, by transcending social ...
Criminal Innovation And The Warrant Requirement: Reconsidering The Rights-Police Efficiency Trade-Off, Tonja Jacobi, Jonah Kind
It is routinely assumed that there is a trade-off between police efficiency and the warrant requirement. But existing analysis ignores the interaction between police investigative practices and criminal innovation. Narrowing the definition of a search or otherwise limiting the requirement for a warrant gives criminals greater incentive to innovate to avoid detection. With limited police resources to develop countermeasures, police will often be just as effective at capturing criminals when facing higher Fourth Amendment hurdles. We provide a game theoretic model that shows that when police investigation and criminal innovation are considered in a dynamic context, the police efficiency rationale ...
Bounties For Bad Behavior: Rewarding Culpable Whistleblowers Under The Dodd-Frank Act And Internal Revenue Code, Jennifer M. Pacella
Jennifer M. Pacella, Esq.
In 2012, Bradley Birkenfeld received a $104 million reward or “bounty” from the Internal Revenue Service (“IRS”) for blowing the whistle on his employer, UBS, which facilitated a major offshore tax fraud scheme by assisting thousands of U.S. taxpayers to hide their assets in Switzerland. Birkenfeld does not fit the mold of the public’s common perception of a whistleblower. He was himself complicit in this crime and even served time in prison for his involvement. Despite his conviction, Birkenfeld was still eligible for a sizable whistleblower bounty under the IRS Whistleblower Program, which allows rewards for whistleblowers who ...
Tell Us A Story, But Don't Make It A Good One: Resolving The Confusion Regarding Emotional Stories And Federal Rule Of Evidence 403, Cathren Page
Abstract: Tell Us a Story, But Don’t Make It A Good One: Resolving the Confusion Regarding Emotional Stories and Federal Rule of Evidence 403
by Cathren Koehlert-Page
Courts need to reword their opinions regarding Rule 403 to address the tension between the advice to tell an emotionally evocative story at trial and the notion that evidence can be excluded if it is too emotional.
In the murder mystery Mystic River, Dave Boyle is kidnapped in the beginning. The audience feels empathy for Dave who as an adult becomes one of the main suspects in the murder of his friend ...
Behavioral International Law, 2014 SelectedWorks
Behavioral International Law, Tomer Broude
Economic analysis and rational choice have in the last decade made significant inroads into the study of international law and institutions, relying upon standard assumptions of perfect rationality of states and decision-makers. This approach is inadequate, both empirically and in its tendency towards outdated formulations of political theory. This article presents an alternative behavioral approach that provides new hypotheses addressing problems in international law while introducing empirically grounded concepts of real, observed rationality. First, I address methodological objections to behavioral analysis of international law: the focus of behavioral research on the individual; the empirical foundations of behavioral economics; and behavioral ...
Positive Prognosis For Judges: A Look Into Judge-Directed Negotiations In Medical Malpractice Cases, 2014 Pepperdine University
Positive Prognosis For Judges: A Look Into Judge-Directed Negotiations In Medical Malpractice Cases, Kristine Gamboa
Pepperdine Dispute Resolution Law Journal
The article examines the effectiveness of the judge-directed negotiation program in the Unified Court System of New York State under the analysis of various medical malpractice lawsuits, which plays a vital role in the legislational reform in the field of medical malpractice. It informs that Douglas McKeon, Judge of the Bronx County Supreme Court had developed the concept of judge-directed negotiations. It overviews the praises and criticisms behind the success of the program.
Deferential Review Of The U.S. Tax Court, After Mayo Foundation V. United States (2011), Andre L. Smith
Andre L. Smith
Deferential Review of the U.S. Tax Court, After Mayo examines whether the Chevron doctrine requires federal circuit courts of appeal to deferentially review the U.S. Tax Court decisions of law. Mayo Foundation v. US (2011) rejects tax exceptionalism and requires the U.S. Tax Court to defer to Treasury regulations carrying the force of law. But Mayo avoids dealing with whether Chevron applies to appellate review of the Tax Court. In “The Fight Over ‘Fighting Regs’ and Judicial Deference in Tax Litigation”, 92 B.U. L. Rev. 643 (2012), Professor Leandra Lederman (Indiana) contends that deference belongs to ...
The Politics Of Statutory Interpretation, 2014 Notre Dame Law School
The Politics Of Statutory Interpretation, Margaret H. Lemos
Notre Dame Law Review
In a new book, Reading Law: The Interpretation of Legal Texts, Justice Antonin Scalia and Bryan Garner describe and defend the textualist methodology for which Justice Scalia is famous. For Scalia and Garner, the normative appeal of textualism lies in its objectivity: by focusing on text, context, and canons of construction, textualism offers protection against ideological judging—a way to separate law from politics. Yet, as Scalia and Garner well know, textualism is widely regarded as a politically conservative methodology. The charge of conservative bias is more common than it is concrete, but it reflects the notion that textualism narrows ...
The Unitary Executive And The Plural Judiciary: On The Potential Virtues Of Decentralized Judicial Power, 2014 Notre Dame Law School
The Unitary Executive And The Plural Judiciary: On The Potential Virtues Of Decentralized Judicial Power, Ronald J. Krotoszynski, Jr.
Notre Dame Law Review
The federal judiciary features a highly decentralized system of courts. The Supreme Court of the United States reviews only a few dozen cases each year. Meanwhile, regional U.S. courts of appeals operate independently of each other; district courts further divide and separate the exercise of federal judicial power. The role of the state courts in enforcing federal law further subdivides responsibility for the adjudication of federal law claims. Indeed, the Office of Chief Justice itself incorporates and reflects this vesting of the judicial power of the United States exclusively in collegial institutions—literally in a multiplicity of hands—effectively ...