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Full-Text Articles in Law

Enforcing Integrity, Katrice Copeland Feb 2016

Enforcing Integrity, Katrice Copeland

Katrice Bridges Copeland

Over the past several years, the marketing practices of large pharmaceutical companies have come under intense scrutiny. The government spends years investigating and building cases against pharmaceutical manufacturers that engage in illegal promotional activities to promote their drugs but does not prosecute them. Instead, the government enters into Corporate Integrity Agreements (CIAs) with the pharmaceutical giants. As a result, the pharmaceutical manufacturers are able to avoid the collateral consequences of conviction, such as exclusion from Medicare and Medicaid. Participation in Medicare and Medicaid is crucial for a pharmaceutical manufacturer because the government spends over $60 Billion per year through those …


The Crime Of Being In Charge: Executive Culpability And Collateral Consequences, Katrice Copeland Feb 2016

The Crime Of Being In Charge: Executive Culpability And Collateral Consequences, Katrice Copeland

Katrice Bridges Copeland

This Article argues that the government's exclusion of executives who have been convicted as "responsible corporate officers" for a period longer than three years without any showing of moral blameworthiness is misguided. The responsible corporate officer doctrine is flawed because under the doctrine it is irrelevant that the executive did not intend for the misconduct to occur. It is not a defense that the executive delegated responsibility in good faith. Nor is it a defense that the executive is not knowledgeable about or did not participate in the misconduct. The only potential defense is impossibility, but it has never been …


Preserving The Corporate Attorney-Client Privilege, Katrice Copeland Feb 2016

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 …


Teaching The Art Of Defending A White Collar Criminal Case, Katrice Copeland Feb 2016

Teaching The Art Of Defending A White Collar Criminal Case, Katrice Copeland

Katrice Bridges Copeland

This Article discusses the author's experience with effectively teaching a white collar crime course.


In-House Counsel Beware!, Katrice Copeland Feb 2016

In-House Counsel Beware!, Katrice Copeland

Katrice Bridges Copeland

This Article argues that the prosecution of Lauren Stevens for covering up the alleged crimes of GSK was misguided both as a matter of law and a matter of policy. In particular, this Article contends that the government should not prosecute attorneys for obstruction of justice or other cover-up crimes for actions taken in good faith during a government investigation into a client's conduct. Part I provides background on the Lauren Stevens case and the convergence of the four prosecution trends that led the government to indict her. Part II argues that Lauren Stevens did not obstruct the government's investigation …


The Forgotten Constitutional Right To Present A Defense And Its Impact On The Acceptance Of Responbilility-Entrapment Debate, Katrice Copeland Feb 2016

The Forgotten Constitutional Right To Present A Defense And Its Impact On The Acceptance Of Responbilility-Entrapment Debate, Katrice Copeland

Katrice Bridges Copeland

This Note argues that Section 3E1.1 of the Federal Sentencing Guidelines must be interpreted to allow defendants who claim entrapment at trial to remain eligible for the acceptance-of-responsibility adjustment. To interpret Section 3E1.1 in any other way would run afoul of defendants' constitutional right to present a defense. Part I argues that the entrapment defense does not put factual guilt at issue; instead the entrapment defense challenges whether the statute should apply to the defendant's conduct. Part II contends that the legislative intent in creating the sentencing guidelines in general and the acceptance-of-responsibility adjustment in particular are furthered by requiring …


Bordenkircher V. Hayes: Ignoring Prosecutorial Abuses In Plea Bargaining, Stephen Ross Jan 2016

Bordenkircher V. Hayes: Ignoring Prosecutorial Abuses In Plea Bargaining, Stephen Ross

Stephen F Ross

In Bordenkircher v. Hayes, the United States Supreme Court upheld a conviction on a charge the prosecutor admittedly filed solely because the defendant refused to plead guilty to another set of charges. Hayes is a sudden departure from a line of cases in which the Court refused to allow prosecutorial charging decisions to be made to discourage a criminal defendant from exercising constitutional or procedural rights. The decision effectively removes plea bargaining from its constitutional premise: the "mutuality of advantage" between the prosecutor and the defendant. Rather than approving the broad exercise of prosecutorial discretion in plea negotiations, the …


Mandatory Reporting Of Campus Sexual Assault And Domestic Violence: Moving To A Victim-Centric Protocol That Comports With Federal Law, Jill Engle Jan 2016

Mandatory Reporting Of Campus Sexual Assault And Domestic Violence: Moving To A Victim-Centric Protocol That Comports With Federal Law, Jill Engle

Jill Engle

This Article will examine "mandatory reporting" of campus domestic violence and sexual assault' by faculty members when a student discloses this kind of incident to them. This Article describes the legal and social landscape of mandatory reporting and the attendant challenges, along with the policies and practices that colleges should adopt for faculty reporting to comply with federal law while still remaining sensitive to victim needs.


The Supreme Court's Love-Hate Relationship With Miranda, Kit Kinports Jan 2016

The Supreme Court's Love-Hate Relationship With Miranda, Kit Kinports

Kit Kinports

In recent years, the Supreme Court has enjoyed a love-hate relationship with its landmark decision in Miranda v. Arizona. While the Court has not hesitated to narrow Miranda’s reach, it has also been wary of deliberate efforts to circumvent it. This pragmatic approach to Miranda can be doctrinally unsatisfying and even incoherent at times, but it basically maintains the core structure of Miranda as the police have come to know and adapt to it. Last Term provided the first glimpse of the Roberts Court’s views on Miranda, as the Court considered three Miranda cases: Maryland v. Shatzer, Florida v. Powell, …


The Dog Days Fourth Amendment Jurisprudence, Kit Kinports Jan 2016

The Dog Days Fourth Amendment Jurisprudence, Kit Kinports

Kit Kinports

This Article discusses Florida v. Harris and Florida v. Jardines, the two Fourth Amendment drug dog opinions issued by the Supreme Court earlier this year. Together the cases hold that a narcotics detection dog effects a “search” when it intrudes on a constitutionally protected area in order to collect evidence, but that the dog’s positive alert is generally sufficient to support a finding of probable cause. The piece argues that both cases essentially generate a bright-line rule, thereby deviating from precedent that favored a more amorphous standard considering all the surrounding circumstances. Like many purportedly clear rules, the ones flowing …


Rape And Force: The Forgotten Mens Rea, Kit Kinports Jan 2016

Rape And Force: The Forgotten Mens Rea, Kit Kinports

Kit Kinports

In rape cases involving physical violence or express threats of physical harm, proof of the actus reus obviously does establish mens rea with respect to force as well as nonconsent. A defendant who beat or threatened to kill his victim could hardly raise a plausible argument that he did not know he was using force. But, in other circumstances, the defendant's mens rea vis-a-vis force may be less clear, and it may therefore make a difference whether a rape conviction requires proof that the defendant purposely intended to use force, or whether it is enough that he knew he was …


So Much Activity, So Little Change: A Reply To The Critics Of Battered Women's Self-Defense, Kit Kinports Jan 2016

So Much Activity, So Little Change: A Reply To The Critics Of Battered Women's Self-Defense, Kit Kinports

Kit Kinports

Prior to 1970, the term "domestic violence" referred to ghetto riots and urban terrorism, not the abuse of women by their intimate partners. Today, of course, domestic violence is a household word. After all, it has now been ten years since the revelation of football star O.J. Simpson's history of battering purportedly sounded "a wake-up call for all of America"; ten years since Congress enacted legislation haled as "a milestone . . .truly a turning point in the national effort to break the cycle" of violence; and twenty years since Farrah Fawcett's portrayal of Francine Hughes in the movie The …


Justice Blackmun's Mark On Criminal Law And Procedure, Kit Kinports Jan 2016

Justice Blackmun's Mark On Criminal Law And Procedure, Kit Kinports

Kit Kinports

When Justice Blackmun was nominated to the Court in 1970, Americans were consumed with the idea of crime control. In the 1968 presidential campaign, Richard Nixon had called the Supreme Court "soft on crime" and had promised to "put 'law and order' judges on the Court." While sitting on the Eighth Circuit, the Justice had "seldom struck down searches, seizures, arrests or confessions," and most of his opinions in criminal cases had "affirmed guilty verdicts and sentences." Thus, according to one commentator, Justice Blackmun seemed to be "exactly what Nixon was looking for: a judge who believed in judicial restraint, …


Probable Cause And Reasonable Suspicion: Totality Tests Or Rigid Rules?, Kit Kinports Jan 2016

Probable Cause And Reasonable Suspicion: Totality Tests Or Rigid Rules?, Kit Kinports

Kit Kinports

This piece argues that the Supreme Court's April 2014 decision in Navarette v. Calfornia, like last Term's opinion in Florida v. Harris, deviates from longstanding Supreme Court precedent treating probable cause and reasonable suspicion as totality-of-the-circumstances tests. Instead, these two recent rulings essentially rely on rigid rules to define probable cause and reasonable suspicion. The article criticizes the Court for selectively endorsing bright-line tests that favor the prosecution, and argues that both decisions generate rules that oversimplify and therefore tend to be overinclusive.


Orders Of Protection In Domestic Violence Cases: An Empirical Assessment Of The Impact Of The Reform Statutes, Kit Kinports, Karla Fischer Jan 2016

Orders Of Protection In Domestic Violence Cases: An Empirical Assessment Of The Impact Of The Reform Statutes, Kit Kinports, Karla Fischer

Kit Kinports

The authors' concern that domestic violence reform statutes might not be having their intended effect sparked their decision to evaluate the protective order statutes empirically. The authors therefore distributed a lengthy survey to 843 domestic violence organizations nationwide that helped battered women obtain protective orders. The survey focused on three issues. The first issue was access to the courts: Is the protective order remedy accessible to battered women? The second issue related to the procedures for obtaining orders of protection: Are judges granting orders in appropriate cases, and are they awarding the full range of remedies contemplated by the reform …


Habeas Corpus, Qualified Immunity, And Crystal Balls: Predicting The Course Of Constitutional Law, Kit Kinports Jan 2016

Habeas Corpus, Qualified Immunity, And Crystal Balls: Predicting The Course Of Constitutional Law, Kit Kinports

Kit Kinports

After describing the basic legal and policy issues surrounding the qualified immunity defense and the use of novelty to explain procedural defaults in habeas cases, Part I of this article advocates a standard for both types of cases that asks whether a person exercising reasonable diligence in the same circumstances would have been aware of the relevant constitutional principles. With this standard in mind, Part II examines the qualified immunity defense in detail, concluding that in many cases public officials are given immunity even though they unreasonably failed to recognize the constitutional implications of their conduct. Part III compares the …


Diminishing Probable Cause And Minimalist Searches, Kit Kinports Jan 2016

Diminishing Probable Cause And Minimalist Searches, Kit Kinports

Kit Kinports

This paper comments on recent Supreme Court opinions that have used phrases such as "reasonable belief" and "reason to believe" when analyzing intrusions that generally require proof of probable cause. Historically, the Court used these terms as shorthand references for both probable cause and reasonable suspicion. While this lack of precision was unobjectionable when the concepts were interchangeable, that has not been true since Terry v. Ohio created a distinction between the two standards. When the Justices then resurrect these terms without situating them in the dichotomy between probable cause and reasonable suspicion, it is not clear whether they are …


Defending Battered Women's Self-Defense Claims, Kit Kinports Jan 2016

Defending Battered Women's Self-Defense Claims, Kit Kinports

Kit Kinports

This Article contends that many battered women who kill their abusive spouses can legitimately raise the standard self-defense claim. No substantial extension of self-defense doctrine is required to justify the acquittal of battered women on self-defense grounds. Furthermore, no special "battered women defense" is necessary or even desirable in such cases. Part I of this Article summarizes the results of psychological research studying abused women and battering relationships. It further explains the concept of the :battered woman syndrome" which describes the effects of sustained physical and psychological abuse by one's husband. Part II discusses the requirements of a successful self-defense …


Culpability, Deterrence, And The Exclusionary Rule, Kit Kinports Jan 2016

Culpability, Deterrence, And The Exclusionary Rule, Kit Kinports

Kit Kinports

This Article discusses the Supreme Court’s use of the concepts of culpability and deterrence in its Fourth Amendment jurisprudence, in particular, in the opinions applying the good-faith exception to the exclusionary rule. The contemporary Court sees deterrence as the exclusionary rule’s sole function, and the Article begins by taking the Court at its word, evaluating its exclusionary rule case law on its own terms. Drawing on three different theories of deterrence – economic rational choice theory, organizational theory, and the expressive account of punishment – the Article analyzes the mechanics by which the exclusionary rule deters unconstitutional searches and questions …


Criminal Procedure In Perspective, Kit Kinports Jan 2016

Criminal Procedure In Perspective, Kit Kinports

Kit Kinports

This Article attempts to situate the Supreme Court's constitutional criminal procedure jurisprudence in the academic debates surrounding the reasonable person standard, in particular, the extent to which objective standards should incorporate a particular individual's subjective characteristics. Analyzing the Supreme Court's search and seizure and confessions opinions, I find that the Court shifts opportunistically from case to case between subjective and objective tests, and between whose point of view - the police officer's or the defendant's - it views as controlling. Moreover, these deviations cannot be explained either by the principles the Court claims underlie the various constitutional provisions at issue …


Camreta And Al-Kidd: The Supreme Court, The Fourth Amendment, And Witnesses, Kit Kinports Jan 2016

Camreta And Al-Kidd: The Supreme Court, The Fourth Amendment, And Witnesses, Kit Kinports

Kit Kinports

Although few noticed the link between them, two Supreme Court cases decided in the same week last Term, Ashcroft v. al-Kidd and Camreta v. Greene, both involved the Fourth Amendment implications of detaining witnesses to a crime. Al-Kidd, an American citizen, was arrested under the federal material witness statute in connection with an investigation into terrorist activities, and Greene, a nine-year-old suspected victim of child abuse, was seized and interrogated at school by two state officials. The opinions issued in the two cases did little to resolve the constitutional issues that arise in witness detention cases, and in fact muddied …


The Emerging Neoliberal Penality: Rethinking Foucauldian Punishment In A Profit-Driven Carceral System, Kevin Crow Dec 2015

The Emerging Neoliberal Penality: Rethinking Foucauldian Punishment In A Profit-Driven Carceral System, Kevin Crow

Kevin Crow

This paper argues that there is a new neoliberal penality emerging in the United States that exhibits four primary characteristics: (1) the death of rehabilitation, (2) the de-individualization of the criminal, (3) the emergence of a market for deviance, and (4) the managerialistic approach. The prison-industrial complex in the United States illustrates these characteristics, but the characteristics are not limited to the prison-industrial complex.

The paper draws on Foucault's concept of the prison as an institution primarily of individual normalization, but notes that it presupposes rehabilitation as the primary goal of the institution. Using Foucault's work in Discipline and Punish …


Mandatory Immigration Detention For U.S. Crimes: The Noncitizen Presumption Of Dangerousness, Mark Noferi Dec 2015

Mandatory Immigration Detention For U.S. Crimes: The Noncitizen Presumption Of Dangerousness, Mark Noferi

Mark L Noferi

Today in the United States, mandatory immigration detention imposes extraordinary deprivations of liberty following ordinary crimes—if the person convicted is not a U.S. citizen. Here, I explore that disparate treatment, in the first detailed examination of mandatory detention during deportation proceedings for U.S. crimes. I argue that mandatory immigration detention functionally operates on a “noncitizen presumption” of dangerousness. Mandatory detention incarcerates noncitizens despite technological advances that nearly negate the risk of flight, with that risk increasingly seen as little different regarding noncitizens, at least those treated with dignity. Moreover, this “noncitizen presumption” of danger contravenes empirical evidence, and diverges from …


Discovery And Adequate Plea Colloquys, R. Michael Cassidy Nov 2015

Discovery And Adequate Plea Colloquys, R. Michael Cassidy

R. Michael Cassidy

Presentation at a conference sponsored by Fair Trials International in Washington, D.C.


From Criminal Law To Urban Law And Policy: A Tribute To Professor Feridun Yenisey, Ryan Rowberry, Julian Juergensmeyer Nov 2015

From Criminal Law To Urban Law And Policy: A Tribute To Professor Feridun Yenisey, Ryan Rowberry, Julian Juergensmeyer

Julian C. Juergensmeyer

No abstract provided.


Toward A Textualist Paradigm For Interpreting Emoticons, John Ehrett Oct 2015

Toward A Textualist Paradigm For Interpreting Emoticons, John Ehrett

John Ehrett

I evaluate the dimensions of courts’ current interpretive dilemma, and subsequently sketch a possible framework for extending traditional statutory interpretation principles into this new domain: throughout the following analysis, I describe the process of attaching cognizable linguistic referents to emoticons and emojis throughout as symbolical reification, and propose a normative way forward for those tasked with deriving meaning from emoji-laden communications.


R. V. Carosella, Richard Haigh, Jim Smith Oct 2015

R. V. Carosella, Richard Haigh, Jim Smith

Richard Haigh

No abstract provided.


Immortality And Sentencing Law, Richard Haigh, Mirko Bagaric Oct 2015

Immortality And Sentencing Law, Richard Haigh, Mirko Bagaric

Richard Haigh

No abstract provided.


Interview With Jock Young, Shelley Gavigan, Susan Addario Oct 2015

Interview With Jock Young, Shelley Gavigan, Susan Addario

Shelley A. M. Gavigan

No abstract provided.


The Corporate Conspiracy Vacuum (Formerly "Corporate Conspiracy: How Not Calling A Conspiracy A Conspiracy Is Warping The Law On Corporate Wrongdoing"), J.S. Nelson Sep 2015

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

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 of this absence of accountability, harmful behavior is ordered and performed without consequences, and the victims of the behavior suffer without appropriate remedy.
This vacuum at the center of American conspiracy law has now warped the doctrines around it. Especially in …