Law Commons^™

The Reverse Agency Problem In The Age Of Compliance, Asaf Eckstein, Gideon Parchomovsky

All Faculty Scholarship

The agency problem, the idea that corporate directors and officers are motivated to prioritize their self-interest over the interest of their corporation, has had long-lasting impact on corporate law theory and practice. In recent years, however, as federal agencies have stepped up enforcement efforts against corporations, a new problem that is the mirror image of the agency problem has surfaced—the reverse agency problem. The surge in criminal investigations against corporations, combined with the rising popularity of settlement mechanisms including Pretrial Diversion Agreements (PDAs), and corporate plea agreements, has led corporations to sacrifice directors and officers in order to reach settlements …

Constraining Monitors, Veronica Root

Veronica Root

Monitors oversee remediation efforts at dozens, if not hundreds, of institutions that are guilty of misconduct. The remediation efforts that the monitors of today engage in are, in many instances, quite similar to activities that were once subject to formal court oversight. But as the importance and power of monitors has increased, the court’s oversight of monitors and the agreements that most often result in monitorships has, at best, been severely diminished and, at worst, vanished altogether.

The lack of regulation governing monitors is well documented; yet, the academic literature on monitorships to date has largely taken the state of …

Sweetheart Deals, Deferred Prosecution, And Making A Mockery Of The Criminal Justice System: U.S. Corporate Dpas Rejected On Many Fronts, Peter Reilly

Peter R. Reilly

Corporate Deferred Prosecution Agreements (DPAs) are contracts negotiated between the federal government and defendants to address allegations of corporate misconduct without going to trial. The agreements are hailed as a model of speedy and efficient law enforcement, but also derided as making a “mockery” of America’s criminal justice system stemming from lenient deals being offered to some defendants. This Article questions why corporate DPAs are not given meaningful judicial review when such protection is required for other alternative dispute resolution (ADR) tools, including plea bargains, settlement agreements, and consent decrees. The Article also analyzes several cases in which federal district …

Perjury By Omission, Ira P. Robbins

Articles in Law Reviews & Other Academic Journals

“Do you swear to tell the truth, the whole truth, and nothing but the truth?” There are few legal phrases that the layperson can repeat verbatim; this is one of them. But how many people truly understand the nuances and ramifications of testifying under oath? Many assume that if they do not provide the “whole truth” under oath, they will face a perjury charge. However, perjury is a charge often threatened but rarely used. The offense requires that the defendant willfully and knowingly make a false statement, under oath, regarding a material fact.

The federal perjury statute does not contemplate …

Mens Rea Reform And Its Discontents, Benjamin Levin

Publications

This Article examines the debates over recent proposals for “mens rea reform.” The substantive criminal law has expanded dramatically, and legislators have criminalized a great deal of common conduct. Often, new criminal laws do not require that defendants know they are acting unlawfully. Mens rea reform proposals seek to address the problems of overcriminalization and unintentional offending by increasing the burden on prosecutors to prove a defendant’s culpable mental state. These proposals have been a staple of conservative-backed bills on criminal justice reform. Many on the left remain skeptical of mens rea reform and view it as a deregulatory vehicle …

Sweetheart Deals, Deferred Prosecution, And Making A Mockery Of The Criminal Justice System: U.S. Corporate Dpas Rejected On Many Fronts, Peter Reilly

Faculty Scholarship

Corporate Deferred Prosecution Agreements (DPAs) are contracts negotiated between the federal government and defendants to address allegations of corporate misconduct without going to trial. The agreements are hailed as a model of speedy and efficient law enforcement, but also derided as making a “mockery” of America’s criminal justice system stemming from lenient deals being offered to some defendants. This Article questions why corporate DPAs are not given meaningful judicial review when such protection is required for other alternative dispute resolution (ADR) tools, including plea bargains, settlement agreements, and consent decrees. The Article also analyzes several cases in which federal district …

Constraining Monitors, Veronica Root

Journal Articles

Monitors oversee remediation efforts at dozens, if not hundreds, of institutions that are guilty of misconduct. The remediation efforts that the monitors of today engage in are, in many instances, quite similar to activities that were once subject to formal court oversight. But as the importance and power of monitors has increased, the court’s oversight of monitors and the agreements that most often result in monitorships has, at best, been severely diminished and, at worst, vanished altogether.

The lack of regulation governing monitors is well documented; yet, the academic literature on monitorships to date has largely taken the state of …

Limiting Leukophobia: Looking Beyond Lockup. Debunking The Strategy Of Turning White Collars Orange, Jared J. Hight

Jared J Hight

The legal and political landscape of the past 30 years has resulted in the abandonment of the utilitarian principle of parsimony as applied to white collar criminals. In response to preceding decades of minor punishments meted out for serious white collar crimes, the Federal Sentencing Commission abandoned the typical past practices of sentencing judges and instead formulated Guidelines that are wildly excessive and no longer balance the need for community safety with the need for that same community to remain economically efficient. The guiding principles of deterrence, rehabilitation, and incapacitation have been deemphasized in a new model that focuses primarily …

Teaching The Methods Of White-Collar Practice: Investigatios, Roger Fairfax

Articles in Law Reviews & Other Academic Journals

When Ijoined the George Washington University Law School [GW] faculty after practice as a federal prosecutor and white-collar criminal defense attorney, I quickly learned that a GW law student interested in exploring white-collar crime had a great many courses from which to choose. Several of my full-time colleagues teach courses that cover various topics relevant to white-collar crime, including a computer crimes course, a course in criminal tax litigation, and courses on anti-corruption in government contracting and the Foreign Corrupt Practices Act [FCPA]. GW is also fortunate to have a dedicated and talented adjunct faculty, which includes a former senior …

New Methods Of Financial White-Collar Criminal Investigation And Prosecution: The Spillover Of Wiretaps To Civil Enforcement Proceedings, Andrew P. Atkins

Pace Law Review

To have a proper understanding of the questions presented by the Rajaratnam cases, a basic understanding of the criminal and civil cases is necessary. Accordingly, Part II will briefly discuss the facts of the two cases, the investigation, and relevant court rulings. Part III will briefly discuss the history and relevant provisions of Title III of the Omnibus Crime Control and Safe Streets Act , the “comprehensive scheme” for regulating the authorization and disclosure of wiretaps. Part IV will discuss the primary theories the SEC could have used to obtain wiretap recordings for use in its civil enforcement proceeding, namely …

Just The Facts: Solving The Corporate Privilege Waiver Dilemma, Don R. Berthiaume

Don R Berthiaume

How can corporations provide “just the facts” — which are, in fact, not privileged — without waiving the attorney client privilege and work product protection? This article argues for an addition to the Federal Rules of Criminal Procedure based upon Rule 30(b)(6) of the Federal Rules of Civil Procedure, which allows civil litigants to issue a subpoena to an organization and cause them to “designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf … about information known or reasonably available to the organization.”[6] Why should we look to Fed. …

White Collar Innocence: Irrelevant In The High Stakes Risk Game, Ellen S. Podgor

Chicago-Kent Law Review

When one thinks of "wrongful convictions and reliability in the criminal justice process" one often thinks of street crime convictions of defendants later proven innocent through DNA or other scientific evidence. But this essay presents a new dimension to this issue—the white collar crime context. Three stories are considered here: Arthur Andersen LLP, Jamie Ois, and Jeffrey Skilling—all of whom proceeded to trial after criminal charges were brought against them. These three are contrasted with KPMG, Gene Foster, and Andrew Fastow, all of whom secured plea agreements or deferred prosecution agreements with reduced sentences and finite results. The concern here …

Murder, Meth, Mammon & Moral Values: The Political Landscape Of American Sentencing Reform (In Symposium On White Collar Crime), Frank O. Bowman Iii

Faculty Publications

This Article examines the ongoing American experiment in mass incarceration and considers the prospects for meaningful sentencing reform.

Drifting Down The Dnieper With Prince Potemkin: Some Skeptical Reflections About The Place Of Compliance Programs In Federal Criminal Sentencing (Symposium), Frank O. Bowman Iii

Faculty Publications

This Article explains how the federal organizational sentencing guidelines work and how they have created incentives for businesses to set up compliance programs. It then considers the paucity of evidence that compliance programs actually prevent the occurrence of corporate crime. It also questions whether investments in compliance programs make sense even for companies caught in a federal criminal investigation. There is little evidence that compliance programs have any significant effect on the likelihood that federal prosecutors will file criminal charges in the first instance. Even more surprisingly, examination of U.S. Sentencing Commission statistics reveals that the compliance program movement seems …

Defense Discovery In White Collar Criminal Prosecutions, Peter J. Henning

Law Faculty Research Publications

No abstract provided.

Book Review, William T. Pizzi

Publications

No abstract provided.

The Business Papers Rule: Personal Privacy And White Collar Crime, John S. Applegate

Articles by Maurer Faculty

No abstract provided.

Of Crime - And Punishment: Sentencing The White-Collar Criminal, Alfred S. Pelaez

Duquesne Law Review

No abstract provided.