Law Commons^™

Considering Sanctions Compliance In Light Of Ucc 4a, Michael Zytnick, Alaina Gimbert

Michigan Business & Entrepreneurial Law Review

As part of a bank’s financial crime compliance program, it is increasingly common to screen and halt the processing of a payment order for compliance investigation where reference is made to a potential, but unconfirmed, target of United States economic sanctions. This essay discusses challenges under Article 4A of the Uniform Commercial Code concerning the timing of such an investigation and the creation of potential liability where a bank wrongly accepts by execution a previously halted payment order received from a sender following five funds transfer business days after the relevant execution date or payment date of that order. In …

The Moral Ambiguity Of Public Prosecution, Gabriel S. Mendlow

Articles

Classic crimes like theft and assault are in the first instance wrongs against individuals, not against the state or the polity that it represents. Yet our legal system denies crime victims the right to initiate or intervene in the criminal process, relegating them to the roles of witness or bystander—even as the system treats prosecution as an institutional analog of the interpersonal processes of moral blame and accountability, which give pride of place to those most directly wronged. Public prosecution reigns supreme, with the state claiming primary and exclusive moral standing to call offenders to account for their wrongs. Although …

Increasing Case Traffic: Expanding The International Criminal Court's Focus On Human Trafficking Cases, Nadia Alhadi

Michigan Journal of International Law

Human trafficking falls within the jurisdictional competence of the International Criminal Court (“ICC”) as one of the article 7 crimes against humanity, whether committed in an atmosphere of conflict or in times of relative peace. Despite the ICC’s jurisdiction, as well as the globally pervasive nature of peacetime trafficking in particular, the ICC has not yet heard a human trafficking case.

Accountability at the international level, however, is crucial, and the ICC’s oversight has the potential to fill gaps in the current anti-trafficking regime. This note explores this potential, and then examines whether the text of the Rome Statute or …

May The State Punish What It May Not Prevent?, Gabriel S. Mendlow

Articles

In Why Is It Wrong To Punish Thought? I defended an overlooked principle of criminalization that I called the Enforceability Constraint. The Enforceability Constraint holds that the state may punish transgressions of a given type only if the state in principle may forcibly disrupt such transgressions on the ground that they are criminal wrongs. As I argued in the essay, the reason why the state is forbidden from punishing thought is that the state is forbidden from forcibly disrupting a person’s mental states on the ground that they are criminally wrongful (as opposed to, say, on the ground that they …

The Possibility Of Prosecuting Corporations For Climate Crimes Before The International Criminal Court: All Roads Lead To The Rome Statute?, Donna Minha

Michigan Journal of International Law

Due to rapid developments in climate science, scientists are now able to quantifiably link significant greenhouse gas emissions caused by major oil and gas corporations to specific climate impacts. These scientific advances have been accompanied by the publication of documents and studies suggesting that the oil and gas industry allegedly had knowledge of climate change as early as sixty years ago, and yet it actively worked to promote climate change denial and to delay governmental regulation on this matter. Though climate-related litigation is proceeding against the industry in different jurisdictions, proceedings brought against oil and gas corporations mainly focus on …

New Environmental Crimes Project Data Shows That Pollution Prosecutions Plummeted During The First Two Years Of The Trump Administration, David M. Uhlmann

Other Publications

The latest data from the Environmental Crimes Project at the University of Michigan Law School shows a dramatic drop in pollution prosecutions during the first two years under President Donald J. Trump. The data, which now includes 14 years of cases from 2005–2018, shows a 70 percent decrease in Clean Water Act prosecutions under President Trump, as well as a more than 50 percent decrease in Clean Air Act prosecutions. The data again shows that most defendants charged with pollution crime commit misconduct involving one or more of the aggravating factors identified in my previous scholarship, so prosecutors continue to …

Thoughts, Crimes, And Thought Crimes, Gabriel S. Mendlow

Michigan Law Review

Thought crimes are the stuff of dystopian fiction, not contemporary law. Or so we’re told. Yet our criminal legal system may in a sense punish thought regularly, even as our existing criminal theory lacks the resources to recognize this state of affairs for what it is—or to explain what might be wrong with it. The beginning of wisdom lies in the seeming rhetorical excesses of those who complain that certain terrorism and hate crime laws punish offenders for their malevolent intentions while purporting to punish them for their conduct. Behind this too-easily-written-off complaint is a half-buried precept of criminal jurisprudence, …

Domestic Violence Convictions And Firearms Possession: The Law As It Stands And As It Moves, Kate E. Britt

Law Librarian Scholarship

Legislatures have attempted to curb instances of gun use in fatal and nonfatal domestic violence by passing statutes restricting possession of firearms for perpetrators of domestic violence. This article explains federal and Michigan law as it stands and discusses current efforts to further limit perpetrators’ access to firearms.

The Elusive Object Of Punishment, Gabriel S. Mendlow

Articles

All observers of our legal system recognize that criminal statutes can be complex and obscure. But statutory obscurity often takes a particular form that most observers have overlooked: uncertainty about the identity of the wrong a statute aims to punish. It is not uncommon for parties to disagree about the identity of the underlying wrong even as they agree on the statute’s elements. Hidden in plain sight, these unexamined disagreements underlie or exacerbate an assortment of familiar disputes—about venue, vagueness, and mens rea; about DUI and statutory rape; about hate crimes, child pornography, and counterterrorism laws; about proportionality in punishment; …

Small Crimes, Big Injustices, Stephanos Bibas

Michigan Law Review

Review of Alexandra Natapoff's Punishment Without Crime: How Our Massive Misdemeanor System Traps the Innocent and Makes America More Unequal.

Divine Justice And The Library Of Babel: Or, Was Al Capone Really Punished For Tax Evasion?, Gabriel Mendlow

Articles

A criminal defendant enjoys an array of legal rights. These include the right not to be punished for an offense unless charged, tried, and proved guilty beyond a reasonable doubt; the right not to be punished disproportionately; and the right not to be punished for the same offense more than once. I contend that the design of our criminal legal system imperils these rights in ways few observers appreciate. Because criminal codes describe misconduct imprecisely and prohibit more misconduct than any legislature actually aspires to punish, prosecutors decide which violations of the code merit punishment, and judges decide how much …

Why Is It Wrong To Punish Thought?, Gabriel S. Mendlow

Articles

It’s a venerable maxim of criminal jurisprudence that the state must never punish people for their mere thoughts—for their beliefs, desires, fantasies, and unexecuted intentions. This maxim is all but unquestioned, yet its true justification is something of a mystery. In this Essay, I argue that each of the prevailing justifications is deficient, and I conclude by proposing a novel one. The proposed justification captures the widely shared intuition that punishing a person for her mere thoughts isn’t simply disfavored by the balance of reasons but is morally wrongful in itself, an intrinsic (i.e., consequence-independent) injustice to the person punished. …

Insider Trading Law And The Ambiguous Quest For Edge, A. C. Pritchard

Michigan Law Review

A review of Sheelah Kolhatkar, Black Edge.

"Declinations With Disgorgement" In Fcpa Enforcement, Karen Woody

University of Michigan Journal of Law Reform

This Article addresses the recent pretrial diversion scheme undertaken by the Department of Justice in conjunction with its Foreign Corrupt Practices Act Pilot Program—specifically, “declinations with disgorgement.” Pursuant to the Pilot Program, the Department of Justice declined to prosecute or even continue an investigation, provided the company disgorge its alleged ill-gotten gains. This Article dissects both the purpose of, and terminology used in, declinations with disgorgement and argues that this novel and creative pretrial diversion is a dangerous conflation of legal remedial theories and terms. A criminal disposition cannot be a declination with attendant penalties because either illegal activity occurred …

The Consensus Myth In Criminal Justice Reform, Benjamin Levin

Michigan Law Review

It has become popular to identify a “consensus” on criminal justice reform, but how deep is that consensus, actually? This Article argues that the purported consensus is much more limited than it initially appears. Despite shared reformist vocabulary, the consensus rests on distinct critiques that identify different flaws and justify distinct policy solutions. The underlying disagreements transcend traditional left/right political divides and speak to deeper disputes about the state and the role of criminal law in society.

The Article maps two prevailing, but fundamentally distinct, critiques of criminal law: (1) the quantitative approach (what I call the “over” frame); and …

The Definition Of Slave Labor For Criminal Enforcement And The Experience Of Adjudication: The Case Of Brazil, Carlos H. B. Haddad

Michigan Journal of International Law

The paper examines the intersections and differences between “slave labor” as used in the Brazilian domestic sphere and “slave labor” as applied to international law. The former shows an approach centered on criminal law, as opposed to human rights law. This paper explains why degrading working conditions and debilitating workdays should continue to be prohibited and punished. It also compares the sanctions of the Brazilian Criminal Code with those of similar crimes in other jurisdictions. It concludes with a discussion of the current bill proposed by Senator José Sarney, which would replace the current definition with one that more closely …

Criminal Certification: Restoring Comity In The Categorical Approach, Joshua Rothenberg

University of Michigan Journal of Law Reform

Federal sentencing enhancements force federal courts to delve into the world of substantive state criminal law. Does a state assault statute require violent force or just offensive touching? Does a state burglary statute that criminalizes breaking into a car or a house require prosecutors to charge the location entered as an element? Whether a person with prior convictions convicted of violating 18 U.S.C. § 922(g) faces a minimum sentence of fifteen years and a maximum of life imprisonment rather than a maximum sentence of ten years turns upon the answers to these questions. Yet, state law often does not resolve …

Race And Wrongful Convictions In The United States, Samuel R. Gross, Maurice Possley, Klara Stephens

Other Publications

African Americans are only 13% of the American population but a majority of innocent defendants wrongfully convicted of crimes and later exonerated. They constitute 47% of the 1,900 exonerations listed in the National Registry of Exonerations (as of October 2016), and the great majority of more than 1,800 additional innocent defendants who were framed and convicted of crimes in 15 large-scale police scandals and later cleared in “group exonerations.” We see this racial disparity for all major crime categories, but we examine it in this report in the context of the three types of crime that produce the largest numbers …

Private Actors And Public Corruption: Why Courts Should Adopt A Broad Interpretation Of The Hobbs Act, Megan Demarco

Michigan Law Review

Federal prosecutors routinely charge public officials with “extortion under color of official right” under a public-corruption statute called the Hobbs Act. To be prosecuted under the Hobbs Act, a public official must promise official action in return for a bribe or kickback. The public official, however, does not need to have actual authority over that official action. As long as the victim reasonably believed that the public official could deliver or influence government action, the public official violated the Hobbs Act. Private citizens also solicit bribes in return for influencing official action. Yet most courts do not think the Hobbs …

How The Sentencing Commission Does And Does Not Matter In Beckles V. United States, Leah Litman, Luke C. Beasley

Articles

Two years ago, in Johnson v. United States, the Supreme Court held that the so-called “residual clause” of the Armed Career Criminal Act (ACCA) is unconstitutionally vague. Last spring, the Court made this rule retroactive in Welch v. United States. Then in June, the Court granted certiorari in Beckles v. United States to resolve two questions that have split lower courts in the wake of Johnson and Welch: (1) whether an identically worded “residual clause” in a U.S. Sentencing Guideline—known as the career offender Guideline—is unconstitutionally void for vagueness; and (2) if so, whether the rule invalidating the Guideline’s residual …

The Problem Of Purpose In International Criminal Law, Patrick J. Keenan

Michigan Journal of International Law

Keenan addresses the problem of purposes in this Article, with two principal objectives. The first is to sort through the competing theories to identify the core purposes of international criminal law. The second is to show how those purposes are or can be put into effect in actual cases. These questions are important because the purposes for which the law is deployed significantly influence how it is deployed. Prosecutors bring different kinds of cases and argue different theories based at least in part on what they hope to achieve. For example, in the domestic context, prosecutors might choose to prioritize …

Holding On To Clarity: Reconciling The Federal Kidnapping Statute With The Trafficking Victims Protection Act, Benjamin Reese

Michigan Law Review

In recent decades, the international community has come to recognize human trafficking as a problem of epidemic proportions. Congress responded to this global crisis in 2000 by passing the Trafficking Victims Protection Act (TVPA) and has since supplemented that comprehensive enactment. But, in light of the widespread use of psychological rather than physical coercion in trafficking cases, a long-standing split among federal courts regarding the scope of the federal kidnapping statute raises significant concerns about the United States’ efforts to combat traffickers. In particular, the broad interpretation adopted by several circuits threatens effective enforcement of statutes designed to prosecute traffickers, …

After Atrocity: Optimizing Un Action Toward Accountability For Human Rights Abuses, Steven R. Ratner

Michigan Journal of International Law

It is a great honor for me to be here to deliver the John Humphrey Lecture. Humphrey led one of those lives within the UN that shaped what the organization has become today—as one of the first generation of UN civil servants, he was to human rights what Ralph Bunche was to peacekeeping, or Brian Urquhart to UN mediation. To read his diaries, so beautifully edited by John Hobbins, is to see a world that has in many ways vanished, a nearly entirely male club, mostly of Westerners, that hammered out new treaties and mechanisms over fine wine and cigars …

Immigrant Victims, Immigrant Accusers, Michael Kagan

University of Michigan Journal of Law Reform

The U visa program provides immigration status to noncitizen victims of crime, ensuring unauthorized immigrants do not become easy prey because they are too afraid to seek help from the police. But under the federal government’s structuring of the U visa program, a victim must also become an accuser to receive immigration benefits. Thus, the U visa implicates the rights of third parties: accused defendants. These defendants are often immigrants themselves who may be deported when U visa recipients level their accusations. Recent state court decisions have created complications in the program by permitting defendants to cross-examine accusers about their …

From Prosecutorial To Reparatory: A Valuable Post-Conflict Change Of Focus, Nancy A. Combs

Michigan Journal of International Law

The ICC is well known in international legal circles. Indeed, everyone who knows anything about international law knows that the ICC is the acronym for the International Criminal Court, the body charged with prosecuting international crimes around the globe. Created in 2002, the ICC was intended to “put an end to impunity” for the perpetrators of international crimes” and to affirm “that the most serious crimes of concern to the international community as a whole must not go unpunished.”1 Imagine, however, a world where the “ICC” instead was an acronym for the International Compensation Court. That is, what if the …

Inciting Genocide With Words, Richard A. Wilson

Michigan Journal of International Law

During the 1994 genocide in Rwanda, observers emphasized the role of media propaganda in inciting Rwandan Hutus to attack the Tutsi minority group, with one claiming that the primary tools of genocide were “the radio and the machete.” As a steady stream of commentators referred to “radio genocide” and “death by radio” and “the soundtrack to genocide,” a widespread consensus emerged that key responsibility for the genocide lay with the Rwandan media. Mathias Ruzindana, prosecution expert witness at the ICTR, supports this notion, writing, “In the case of the 1994 genocide in Rwanda, the effect of language was lethal . …

The Incitement Of Terrorism On The Internet: Legal Standards, Enforcement, And The Role Of The European Union, Ezekiel Rediker

Michigan Journal of International Law

Consider this sentence: “The Shining Path is a heroic organization.” Over the past thirty years, the Shining Path has waged a violent guerilla war against the Peruvian government, prompting the European Union to designate the group as a terrorist organization. In certain European countries, speech inciting or glorifying terrorist organizations is criminalized. As a result, citizens risk prosecution if they do not carefully limit what they say about the Shining Path, or other terrorist organizations. But where does free speech end and incitement to terrorism begin? The debate over free speech and incitement to terrorism is actively being played out …

Process Costs And Police Discretion, Charlie Gerstein, J. J. Prescott

Articles

Cities across the country are debating police discretion. Much of this debate centers on “public order” offenses. These minor offenses are unusual in that the actual sentence violators receive when convicted — usually time already served in detention — is beside the point. Rather, public order offenses are enforced prior to any conviction by subjecting accused individuals to arrest, detention, and other legal process. These “process costs” are significant; they distort plea bargaining to the point that the substantive law behind the bargained-for conviction is largely irrelevant. But the ongoing debate about police discretion has ignored the centrality of these …

Excuses In Exile, Anders Kaye

University of Michigan Journal of Law Reform

Suppose that I have intentionally killed another person and that I have done so without any justification. At first glance, it appears that I am guilty of murder, a very serious crime. Since I am guilty of this very serious crime, the state may inflict a very serious punishment on me—at least many years in prison, if not my whole life or the death penalty. But suppose that one of the following is also true in my case: (A) At the time that I killed my victim, I suffered from a mental disease and, as a result, lacked the substantial …

Racial Profiling In The War On Drugs Meets The Immigration Removal Process: The Case Of Moncrieffe V. Holder, Kevin R. Johnson

University of Michigan Journal of Law Reform

In Moncrieffe v. Holder, the Supreme Court held that the Board of Immigration Appeals could not remove a long-term lawful permanent resident from the United States based on a single misdemeanor conviction for possession of a small amount of marijuana. The decision clarified the meaning of an “aggravated felony” for purposes of removal, an important question under the U.S. immigration laws. In the removal proceedings, Adrian Moncrieffe, a black immigrant from Jamaica, did not challenge his arrest and drug conviction. Consequently, the Supreme Court did not review the facts surrounding, or the lawfulness of, the criminal prosecution. Nonetheless, the traffic …