Law Commons^™

German Vat Compliance - Moving One Step Closer To Automated Third-Party Solutions, Richard Thompson Ainsworth

Faculty Scholarship

Recent developments in German VAT compliance, notably (a) the imposition of criminal penalties for failing to immediately amend a preliminary return that is known to be in error [Bundesgerichtshof decision of March 17, 2009, No. BGH 1 StR 342/08], when considered in tandem with (b) amendments to the voluntary disclosure rules, Gesetz zur Vebesserung der Bekämpfung von Geldwäsche und Steuerhinterziehung, it is clear that the German VAT compliance landscape has changed dramatically in the past year.

Taken as a whole, the German rules strongly encourage internal audits, self-reviews, and immediate self-disclosures of errors in previously filed returns and taxes paid. …

Changes To The Culture Of Adversarialness: Endorsing Candor, Cooperation And Civility In Relationships Between Prosecutors And Defense Counsel, Stacy Caplow, Lisa Griffin

Faculty Scholarship

No abstract provided.

My Brother's Keeper: An Empirical Study Of Attorney Facilitation Of Money-Laundering Through Commercial Transactions, Lawton P. Cummings, Paul T. Stepnowsky

Faculty Scholarship

In recent years, various “gatekeeping initiatives” have been introduced through inter-governmental standard-setting organizations, such as the Financial Action Task Force, as well as through federal legislation in the United States, which seek to apply the mandatory customer due diligence, record keeping, and suspicious activity reporting obligations contained in the existing anti-money laundering regime to lawyers when they conduct certain commercial transactions on behalf of their clients. The organized bar has argued against such attempts to regulate it, in part, due to the lack of empirical data showing that, as a threshold matter, lawyers unwittingly aid money laundering in a significant …

Clarity And Confusion: Rico's Recent Trips To The United States Supreme Court, Randy D. Gordon

Faculty Scholarship

The complicated structure of the Racketeer and Corrupt Organization Act has bedeviled courts courts and litigants since its adoption four decades ago. Two questions have recurred with some frequency. First, is victim reliance an element of a civil RICO claim predicated on allegations of fraud? Second, what is the difference between an illegal association-in-fact and an ordinary civil conspiracy? In a series of three recent cases, the United States Supreme Court brought much needed clarity to the first question. But in another recent case, the Court upended decades of circuit-court precedent holding that an actionable association-in-fact must be embody a …

State Constitutionalism: State-Court Deference Or Dissonance?, Arthur Leavens

Faculty Scholarship

This Article focuses on the debate concerning state constitutional expansion of criminal-procedure protections. It examines two such rights: (1) the protection against unreasonable searches and seizures; and (2) the right to the assistance of counsel in defending a criminal case. Each of these rights is embodied in both the federal and most, if not all, state constitutions. Each right is thus doubly applicable to the states, first, through the federal version by virtue of its incorporation into the Fourteenth Amendment’s due process protection and, second, through the state constitution’s version of the cognate right. So focused, the question is, what …

Double-Edged Paring Knives: Human Rights Dilemmas For Special Populations, Giovanna Shay

Faculty Scholarship

The United States makes up only 5 percent of the world's population, but it incarcerates 25 percent of the globe's prisoners. This unprecedented level of incarceration has brought increased attention to the problems of particular subsets of prisoners sometimes called "special populations." These groups include female prisoners; lesbian, gay, bisexual, transgender (LGBT), and questioning inmates; older prisoners; and prisoners with mental illness and physical disabilities. This Article discusses human rights dilemmas in the treatment of special populations in prison.

The Article surveys ABA Standards and Resolutions that bear on special populations. While ABA Standards do not have the force of …

Statutory Interpretation, Morality, And The Text, Lawrence Solan

Faculty Scholarship

No abstract provided.

The Experiential Future Of The Law, Adam Kolber

Faculty Scholarship

No abstract provided.

Cooperation's Cost, Miriam H. Baer

Faculty Scholarship

No abstract provided.

Criminal Law In The Shadow Of Violence, Alice Ristroph

Faculty Scholarship

No abstract provided.

Attribution Of Criminal Liability A Critical Comparison Of The Us Doctrine Of Conspiracy And The Icty Doctrine Of Joint Criminal Enterprise From An American Perspective, Mark A. Summers

Faculty Scholarship

No abstract provided.

Beyond Experience: Getting Retributive Justice Right, Dan Markel, Chad Flanders, David C. Gray

Faculty Scholarship

How central should hedonic adaptation be to the establishment of sentencing policy? In earlier work, Professors Bronsteen, Buccafusco, and Masur (BBM) drew some normative significance from the psychological studies of adaptability for punishment policy. In particular, they argued that retributivists and utilitarians alike are obliged on pain of inconsistency to take account of the fact that most prisoners, most of the time, adapt to imprisonment in fairly short order, and therefore suffer much less than most of us would expect. They also argued that ex-prisoners don't adapt well upon re-entry to society and that social planners should consider their post-release …

When Business Conduct Turns Violent: Bringing Bp, Massey, And Other Scofflaws To Justice, Jane F. Barrett

Faculty Scholarship

In April 2010, forty-seven people died violently as a result of explosions at an oil refinery, in a coal mine and on an offshore drilling rig. The BP Deepwater Horizon catastrophe, the Massey Mine coal mine disaster and the Tesoro Corporation oil refinery explosion raise questions about the corporate and individual criminal culpability of those responsible for these deaths. Too often cases involving worker deaths are not prosecuted at all or result in simply large fines against a corporate entity. This Article argues that the Department of Justice needs to more aggressively investigate and prosecute not only organizations but, more …

Prosecution Without Representation, Douglas L. Colbert

Faculty Scholarship

Nearly 50 years after the Supreme Court's landmark ruling in Gideon v. Wainwright established indigent defendants' constitutional right to counsel, poor people throughout the country still remain without a lawyer when first appearing before a judicial officer who determines pretrial liberty or bail. Absent counsel, low-income defendants unable to afford bail remain in jail for periods ranging from 3-70 days until assigned counsel appears in-court. Examining Walter Rothgery's wrongful prosecution, the article includes a national survey that informs readers about the limited right to counsel at the initial appearance and the extent of delay in each of the 50 states. …

Penalty And Proportionality In Deportation For Crimes, Maureen A. Sweeney, Hillary Scholten

Faculty Scholarship

No abstract provided.

School Children And Parolees: Not So Special Anymore, Edwin Butterfoss

Faculty Scholarship

The Fourth Amendment special needs exception may be one of the Court’s most puzzling doctrines. Since its origin, the Court has struggled to define its limits and its place in the Court’s suspicionless search and seizure jurisprudence. At times the Court has suggested that the exception is the only route to upholding a search or seizure in the absence of individualized suspicion, while at other times it has stated that it is just one of a limited number of exceptions to the requirement of individualized suspicion. Historically, while the application of the special needs exception has been unpredictable, one thing …

Aba's Project To Revise The Criminal Justice Standards For The Prosecution And Defense Functions, Rory K. Little

Faculty Scholarship

No abstract provided.

Somebody's Watching Me: Fcpa Monitorships And How They Can Work Better, F. Joseph Warin, Michael S. Diamant, Veronica S. Root

Faculty Scholarship

This article explores the rise of the corporate compliance monitor as a condition for settling violations of the U.S. Foreign Corrupt Practices Act (“FCPA”) — a setting in which federal prosecutors routinely impose monitors. If U.S. enforcement authorities maintain their current approach, the reality is that companies facing liability for violating the FCPA are likely to have a monitor imposed on them as part of a settlement agreement. From the U.S. government’s perspective, monitorships make sense for companies that violate anti-bribery laws, making it important for offending corporations to learn how to deal with monitors. Pulling from the authors’ extensive …

The Canadian Criminal Jury, Neil Vidmar, Regina Schuller

Faculty Scholarship

The Canadian criminal jury system has some unique characteristics. In contrast to American law, that gives precedent to free speech over fair trial, and English law, that favors fair trial over free speech, Canadian law occupies a middle ground balancing these competing values .Jury selection procedure in most trials is similar to that of England: jurors are assumed to be “impartial between the Queen and the accused” and are selected without a voir dire. However, in cases involving exceptional pretrial publicity or involving accused persons from racial or ethnic minority groups, jurors are vetted by a “challenge for cause” process …

Feminism, Power, And Sex Work In The Context Of Hiv/Aids: Consequences For Women's Health, Aziza Ahmed

Faculty Scholarship

This paper examines the involvement of feminists in approaches to sex work in the context of HIV/AIDS. The paper focuses on two moments where feminist disagreement produced results in favor of an "anti-trafficking" approach to addressing the vulnerability of sex workers in the context of HIV. The first is the UNAIDS Guidance Note on Sex Work and the second is the "anti-prostitution pledge" found in the Presidents Emergency Plan for AIDS Relief. This article also examines the anti-sex work position articulated by abolitionist feminists and demonstrates the unintended consequences of the abolitionist position on women's health. By examining the actual …

Developing Standards Of Conduct For Prosecutors And Criminal Defense Lawyers, Bruce A. Green

Faculty Scholarship

No abstract provided.

"A Good Man Always Knows His Limitations": Overconfidence In Criminal Offending, Thomas Loughran, Ray Paternoster, Alex R. Piquero, Jeffrey Fagan

Faculty Scholarship

Traditional criminological research in the area of rational choice and crime decisions places a strong emphasis on offenders’ perceptions of risk associated with various crimes. Yet, this literature has thus far generally neglected the role of individual overconfidence in both the formation of subjective risk perceptions and the association between risk and crime. In other types of high risk behaviors which serve as analogs to crime, including stock trading and uncertain business and investment decisions, overconfidence is shown to have a stimulating effect on an individuals’ willingness to engage in these behaviors. Using data from two separate samples, this paper …

Brief Of Amica Curiae, Deborah A. Demott In Support Of The Petitioner, Maples V. Thomas, Deborah A. Demott

Faculty Scholarship

No abstract provided.

Inside-Out Enforcement, Lisa Kern Griffin

Faculty Scholarship

No abstract provided.

Good Faith And Law Evasion, Samuel W. Buell

Faculty Scholarship

Laws imposing sanctions can be self-defeating by supplying incentive and guidance for actors engaged in socially undesirable activities to reshape conduct to avoid penalties. Sometimes this is deterrence. But if the new activity, as much as the old, contravenes the normative stance of the legal project, it is a failure of law. The problem of evasion warrants response in many fields - not least in criminal law despite the frequent and too simple assumption that legality-related values require narrow prohibitions that unavoidably permit evasion. Three common responses to evasion have serious deficits. Foregoing control of evasion is a mistake if …

Courts' Increasing Consideration Of Behavioral Genetics Evidence In Criminal Cases: Results Of A Longitudinal Study, Deborah W. Denno

Faculty Scholarship

This article, which is part of a symposium honoring David Baldus, presents a unique study of all criminal cases (totaling thirty-three) that addressed behavioral genetics evidence from June 1, 2007, to July 1, 2011. The study builds upon this author’s prior research on all criminal cases (totaling forty-eight) that used such evidence during the preceding thirteen years (1994-2007). This combined collection of eighty-one criminal cases employing behavioral genetics evidence offers a rich context for determining how the criminal justice system has been handling genetics factors for nearly two decades, but also why the last four years reveal particularly important discoveries. …

The Federal Common Law Crime Of Corruption, Lisa Kern Griffin

Faculty Scholarship

This contribution to the North Carolina Law Review’s 2010 symposium, Adaptation and Resiliency in Legal Systems, considers the compatibility between the common law nature of honest services fraud and the dynamic quality of public integrity offenses. Corruption enforcement became a focal point of recent debates about over- criminalization because it typifies expansive legislative mandates for prosecutors and implicit delegations to courts. Federal prosecutions of political corruption have relied primarily on an open-textured provision: 18 U.S.C. § 1346, the honest services extension of the mail fraud statute. Section 1346 raises notice concerns because it contains few self-limiting terms, but it has …

The Brady Rule May Hurt The Innocent, N. Garoupa, Matteo Rizzolli

Faculty Scholarship

Mandatory disclosure of evidence (the so-called Brady rule) is considered to be among the most important bulwarks against prosecutorial misconduct. While protecting the generality of defendants in the criminal process, we show that under certain reasonable assumptions this procedural mechanism may hurt innocent defendants by inducing prosecutors to adjust their behavior to their detriment. The main rationale for our thesis is that, if forced to reveal exculpatory information, the prosecutor might not look for that information in the first place, and in turn this could harm the innocent under certain reasonable conditions. We extensively discuss our results in the context …

Randomization And The Fourth Amendment, Bernard Harcourt, Tracey L. Meares

Faculty Scholarship

Randomized checkpoint searches are generally taken to be the exact antithesis of reasonableness under the Fourth Amendment. In the eyes of most jurists checkpoint searches violate the central requirement of valid Fourth Amendment searches – namely, individualized suspicion. We disagree. In this Article, we contend that randomized searches should serve as the very lodestar of a reasonable search. The notion of "individualized" suspicion is misleading; most suspicion in the modem policing context is group based and not individual specific. Randomized searches by definition are accompanied by a certain level of suspicion. The constitutional issue, we maintain, should not turn on …

An Institutionalization Effect: The Impact Of Mental Hospitalization And Imprisonment On Homicide In The United States, 1934-2001, Bernard E. Harcourt

Faculty Scholarship

Previous research suggests that mass incarceration in the United States may have contributed to lower rates of violent crime since the 1990s but, surprisingly, finds no evidence of an effect of imprisonment on violent crime prior to 1991. This raises what Steven Levitt has called “a real puzzle.” This study offers the solution to the puzzle: the error in all prior studies is that they focus exclusively on rates of imprisonment, rather than using a measure that combines institutionalization in both prisons and mental hospitals. Using state-level panel-data regressions over the 68-year period from 1934 to 2001 and controlling for …