Criminal Law Commons^™

Corporate War Crimes: Prosecuting Pillage Of Natural Resources, James G. Stewart

All Faculty Publications

Pillage means theft during war. Although the prohibition against pillage dates to antiquity, pillaging is a modern war crime that can be enforced before international and domestic criminal courts. Following World War II, several businessmen were convicted for the pillage of natural resources. And yet modern commercial actors are seldom held accountable for their role in the illegal exploitation of natural resources from modern conflict zones, even though pillage is prosecuted as a matter of course in other contexts. This book offers a doctrinal road-map of the law governing pillage as applied to the illegal exploitation of natural resources by …

Reply: Clawback To The Future, Miriam A. Cherry, Jarrod Wong

All Faculty Scholarship

In an earlier article also available on Scholarship Commons, Clawbacks: Prospective Contract Measures in an Era of Excessive Executive Compensation and Ponzi Schemes, Minnesota Law Review, Vol. 94, p. 368, 2009, Professors Miriam Cherry and Jarrod Wong set out an initial description and analysis of contractual clawback provisions. In this Reply, Profs. Cherry and Wong address three aspects of Michael Macchiarola's Response: its application of the clawback doctrine to the recoupment of executive compensation; the criticism that the clawbacks doctrine introduces latent subjectivity into contractual analysis; and the apparent operational difficulties in implementing clawbacks.

Mtic Fraud Infects Tradable Carbon Permits, Richard Thompson Ainsworth

Faculty Scholarship

Missing trader intra-community (MTIC) fraud has been slowly morphing from cell phones and computer chips to other commodities. In the last few months however MTIC made a dramatic appearance in tradable CO2 permits. It closed exchanges and prompted France and the Netherlands to unilaterally change their tax treatment of CO2 trades. The UK has followed the French treatment in large measure. On Monday June 8, 2009 rumors of MTIC fraud in carbon emission permits closed the main European exchange for spot trading of European Union carbon emissions permits and Kyoto offsets. When BlueNext began trading permits again on Wednesday, June …

California Zappers: A Proposal For The Commission For The 21st Century Economy, Richard Thompson Ainsworth

Faculty Scholarship

California has not uncovered a single instance of technology-assisted cash skimming - there are no zappers, and no phantomware in California. Is this because Californians are not skimming cash sales with technology, or is this because the California technology works so well that the fraud cannot be detected?

The record in foreign jurisdictions is reasonable clear. Automated sales suppression technology is widely used to skim cash sales, denying the state revenues from consumption taxes that have been paid by the consumer, reducing taxable business profits, and funding a cash hoard out of which unreported employee wages are paid. Government studies …

Two Ways To Think About The Punishment Of Corporations, Albert Alschuler

Faculty Working Papers

This article compares the criminal punishment of corporations in the twenty-first century with two ancient legal practices—deodand (the punishment of animals and objects that have produced harm) and frankpledge (the punishment of all members of a group when one member of the group has avoided apprehension for a crime). It argues that corporate criminal punishment is a mistake but that viewing it as frankpledge is less ridiculous than viewing it as deodand. The article considers the implications of the choice between these concepts for standards of corporate guilt and for the sentencing of corporate offenders. After a brief historical description …

The Curious Case Of Corporate Criminality, Erik Luna

Scholarly Articles

No abstract provided.

The Unaccountability Of The Accounting Regulators: Analyzing The Constitutionality Of The Public Company Accounting Oversight Board, 42 J. Marshall L. Rev. 1019 (2009), Whitney Innes

UIC Law Review

No abstract provided.

A Response To The Critics Of Corporate Criminal Liability, Sara Sun Beale

Faculty Scholarship

This essay responds to critics of corporate liability and to the claim that elimination or limitation of such liability should be a priority for law reform. It discusses four points. First, imposing criminal liability on corporations makes sense, because corporations are not mere “fictional” entities. Rather, corporations are very real – and enormously powerful – actors whose conduct often causes very significant harms both to individuals and to society as a whole. Second, in evaluating the priorities for law reform it is critical to recognize that most of the problems with corporate liability are endemic to U.S. criminal law, rather …

Environmental Crime Comes Of Age: The Evolution Of Criminal Enforcement In The Environmental Regulatory Scheme, David M. Uhlmann

Articles

The Rivers and Harbors Act of 1899 often is considered the first environmental criminal statute because it contains strict liability provisions that make it a misdemeanor to discharge refuse into navigable waters of the United States without a permit. When Congress passed the Rivers and Harbors Act, however, it was far more concerned with preventing interference with interstate commerce than environmental protection. For practical purposes, the environmental crimes program in the United States dates to the development of the modem environmental regulatory system during the 1970s, and amendments to the environmental laws during the 1980s, which upgraded criminal violations of …

Can Corporate Monitorships Improve Corporate Compliance?, Cristie Ford, David Hess

All Faculty Publications

Over the last few years, prosecutors and SEC enforcement attorneys have increasingly relied on settlement agreements (such as deferred prosecution agreements) to combat securities violations and other corporate criminal acts. Many of these agreements require the use of corporate monitors to oversee the corporation's compliance with the settlement and its implementation of a compliance program to prevent future violations of the law. Although these agreements have received significant attention from legislators and scholars, there has been no investigation into the critically important question of whether or not the use of corporate monitors achieves its intended goals. Based primarily on interviews …

Clawbacks: Prospective Contract Measures In An Era Of Excessive Executive Compensation And Ponzi Schemes, Miriam A. Cherry, Jarrod Wong

All Faculty Scholarship

In the spring of 2009, public outcry erupted over the multi-million dollar bonuses paid to AIG executives even as the company was receiving TARP funds. Various measures were proposed in response, including a 90% retroactive tax on the bonuses, which the media described as a "clawback." Separately, the term "clawback" was also used to refer to remedies potentially available to investors defrauded in the multi-billion dollar Ponzi scheme run by Bernard Madoff. While the media and legal commentators have used the term "clawback" reflexively, the concept has yet to be fully analyzed. In this article, we propose a doctrine of …

Linkage And The Deterrence Of Corporate Fraud, Miriam Baer

Faculty Scholarship

No abstract provided.

Corporations As Victims Of Mismanagement: Beyond The Shareholders Vs. Managers Debate, Carlos Gomez-Jara Diez

Pace Law Review

No abstract provided.

What Is A Business Crime?, Richard A. Booth

Journal of Business & Technology Law

No abstract provided.

Sentencing High-Loss Corporate Insider Frauds After Booker, Frank O. Bowman Iii

Faculty Publications

The Federal Sentencing Guidelines have for some years prescribed substantial sentences for high-level corporate officials convicted of large frauds. Guidelines sentences for offenders of this type moved higher in 2001 with the passage of the Economic Crime Package amendments to the Guidelines, and higher still in the wake of the Sarbanes-Oxley Act of 2002. Today, any corporate insider convicted of even a moderately high-loss fraud is facing a guideline range measured in decades, or perhaps even mandatory life imprisonment. Successful sentencing advocacy on behalf of such defendants requires convincing the court to impose a sentence outside (in many cases, far …

Corporate America Fights Back: The Battle Over Waiver Of The Attorney-Client Privilege, Michael L. Seigel

UF Law Faculty Publications

This Article addresses a topic that is the subject of an on-going and heated contest between the business lobby and its lawyers, on the one side, and the U.S. Department of Justice on the other. The fight is over federal prosecutors' escalating practice of requesting that corporations accused of criminal wrongdoing waive their attorney-client privilege as part of their cooperation with the government. The Department of Justice views privilege waiver as a legitimate and critical tool in its post-Enron battle against white collar crime. The business lobby views it as encroaching on corporations' fundamental right to protect confidential attorney-client communications. …

Board Dysfunction: Dealing With The Threat Of Corporate Criminal Liability, Peter J. Henning

Law Faculty Research Publications

No abstract provided.

A Forensic Study Of Daewoo's Corporate Governance: Does Responsibility For The Meltdown Solely Lie With The Chaebol And Korea?, Joongi Kim

Northwestern Journal of International Law & Business

At the end of 1999, one of the largest conglomerates in the world, the Daewoo Group, collapsed in a spectacular fashion. During its peak, Daewoo was a sprawling enterprise with over 320,000 employees with 590 subsidiaries overseas that operated in over 110 countries. Its management received widespread praise and academic recognition for its success. Yet, when the Asian financial crisis hit in 1997, it managed to commit a deception worth 22.9 trillion won ($15.3 billion) that was termed the "biggest accounting fraud in history, surpassing WorldCom and Enron . . . ." Years later, inner-workings of the conglomerate are finally …

The Doj Risks Killing The Golden Goose Through Computer Associates/Singleton Theories Of Obstruction, Julie R. O'Sullivan

Georgetown Law Faculty Publications and Other Works

The DOJ, through its corporate criminal charging policy, puts a premium on corporate cooperation with prosecutors. The "partnership" that the DOJ's cooperation policy demands of corporations is extremely valuable. But the DOJ threatens to kill its own golden goose by bringing a spate of high-profile prosecutions of corporate executives (Sanjay Kumar, Stephen Richards, and Greg Singleton) for obstruction of an "official proceeding" premised on their lies to the corporation's own counsel.

The Last Straw: The Department Of Justice's Privilege Waiver Policy And The Death Of Adversarial Justice In Criminal Investigations Of Corporations, Julie R. O'Sullivan

Georgetown Law Faculty Publications and Other Works

The white-collar criminal defense bar has never been reticent to complain about U.S. Department of Justice (DOJ) policies that threaten its clients or the viability of its practice. But nothing--at least in the author's twenty-plus years of involvement in white-collar issues--has consumed the bar as much as the threats posed to the corporate attorney-client privilege and work-product doctrine. While commentators have identified a variety of assaults on these protections, the bar is most vocally outraged by the DOJ policy, pursuant to which, it charges, federal prosecutors regularly insist that corporations waive these protections to secure cooperation credit, declination of criminal …

Of Breaches Of The Peace, Home Invasions, And Securities Fraud, A. Christine Hurt

Faculty Scholarship

No abstract provided.

Unfulfilled Expectations: An Empirical Analysis Of Why Sarbanes-Oxley Whistleblowers Rarely Win, Richard E. Moberly

William & Mary Law Review

Scholars praise the whistleblower protections of the Sarbanes- Oxley Act of 2002 as one of the most protective anti-retaliation provisions in the world. Yet, during its first three years, only 3.6% of Sarbanes-Oxley whistleblowers won relief through the initial administrative process that adjudicates such claims, and only 6.5% of whistleblowers won appeals through the process. This Article reports the results of an empirical study of all Department of Labor Sarbanes-Oxley determinations during this time, consisting of over 700 separate decisions from administrative investigations and hearings. The results of this detailed analysis demonstrate that administrative decision makers strictly construed, and in …

Car Flipping In The U.K.: The Vat Fraud Marketplace And Certified Solutions, Richard Thompson Ainsworth

Faculty Scholarship

Missing Trader Intra-Community (MTIC) fraud and its offspring carousel fraud and contra trading fraud are siphoning huge amounts of VAT revenue from the UK Treasury. This fraud is not a function of the goods involved. It is a function of the market-place. Recently another type of market-place dependent VAT fraud has taken hold in the UK - car-flipping.

In some instances the market-place where these frauds festers is a pre-existing or natural market-place, one that grows out of legitimate commercial practices. Fraudsters enter this market-place (so the argument goes) and take advantage of legitimate businesses who unwittingly get caught up …

Who Is Entitled To Survivor Benefits From Erisa Plans?, 40 J. Marshall L. Rev. 919 (2007), Albert Feuer

UIC Law Review

No abstract provided.

Identity Theft: Plugging The Massive Data Leaks With A Stricter Nationwide Breach-Notification Law, 40 J. Marshall L. Rev. 681 (2007), Amanda Draper

UIC Law Review

No abstract provided.

The Yukos Money Laundering Case: A Never-Ending Story, Dmitry Gololobov

Michigan Journal of International Law

The Yukos case has unveiled the possible dangers of money laundering legislation in the hands of governments with transitional economies and weak democratic traditions. Even if the anti-money laundering laws of the country comply with international pronouncements to the letter, there are still a number of ways the laws could be used for the sole purpose of persecuting political opponents. In the Yukos case, the money laundering charges were interrelated with the charges of corporate tax evasion, which, taken separately, in Russia, represent a rather weak tool for suppressing the political opponents, but taken together they are perfect for the …

"Acoustic Segregation" And The Hispanic Small Business Owner, Patricia S. Abril

Articles

No abstract provided.

The Impact On Director And Officer Behavior: Reflective Essays, Donald C. Langevoort

Georgetown Law Faculty Publications and Other Works

I fall on the side of the skeptics about whether criminal liability in financial reporting cases is a healthy tool because I have doubts about whether judgments are likely to be proportionate. And proportionality is a very important measure in criminal law for two reasons. First, we expect the punishment to fit the crime as a matter of justice. Secondly, if we have disproportionately harsh treatment, then the behavior of officers and directors in response to over-deterrence is that they will pay too much attention to matters that are precautionary as opposed to profit-generating. And the point of a business …

Criminal Procedure Within The Firm, Samuel W. Buell

Faculty Scholarship

It seems improbable that the theoretical and doctrinal framework of criminal procedure, developed mostly through a binary model of the individual and the state, would fit without modification in the tripartite model of the state, the firm, and the individual that characterizes the investigation and sanctioning of criminal conduct within legal entities. This intuition—which has been underexplored in spite of heated public debate about the state’s practices in this area—proves correct. I develop some components of a framework for understanding procedure for individual cases of criminal wrongdoing within firms and generating insights to guide reform. The process of pursuing individual …

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.