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Abstract:
This article examines the war on financial crimes that began after the collapse of Enron in 2001. Although many believed that the reforms implemented following this scandal led to greater prosecutorial focus on financial crimes and longer prison sentences, an analysis of data from 1995 through 2006 reveals that little has actually changed. The statistics demonstrate that the government's focus on financial crimes has not increased and prison sentences for fraud have remained stagnant. How could this be the case? It is this author's hypothesis that although prosecutors could have chosen to use new statutes and amendments to the United States Sentencing Guidelines passed in the wake of Enron to increase prosecutions and sentences, they did not. Instead, prosecutors are using their new tools to encourage defendants to accept plea agreements that include sentences similar to those offered before 2001, while simultaneously threatening to use these same powers to secure astounding sentences if defendants force a trial. The result is that the promises of post-Enron reforms aimed at financial criminals were hollow and served only to reinforce plea bargaining's triumph.

Crime, Criminal Law, Criminal Procedure, Plea Bargaining, Plea Bargain, Plea Deal, Prosecution, Federal Prosecutor, Department of Justice, DOJ, Attorney General, Sentencing, Sentencing Guidelines, Enron, Financial Crimes, Corporate Crime, White Collar Crime, Financial Crimes Task Force

Abstract:
In 1946, the governor-elect of Georgia died, sparking a constitutional battle that brought a state government to its knees and a state supreme court to the height of its power. As two armies drew up on the streets of Atlanta, fights erupted in the executive offices and two men stood head to head in a battle for the vacant governor's seat. Into this fray, however, came the rule of law in the form of the state courts, and what may have swelled into an armed conflict of unseen proportions in twentieth century American politics ended with the stirring strike of the state supreme court's gavel.

While the war over the executive powers ended without a single gunshot, the staggering battles that took place in the state court system provide a fascinating glimpse at Southern legal and political history in the mid-twentieth century. This article not only explores a court struggling to define itself as a legitimate independent branch of government, but also examines attorneys and judges laying the groundwork for an originalist argument that would become a major constitutional movement decades later. Through all this, the article discusses not only the history of a magnificent case, but also the evolution of legal institutions and ideas in the mid-1900s.

Southern History, Legal History, Southern Politics, American Politics, Originalism, Constitution, Gubernatorial Election, Three Governors

Abstract:
In the period leading to the Civil War, debate over federalism and states’ rights developed into the seeds of a war that would forever change America. Over one hundred years later, the debate over federalism continues, unanswered by the blood of more than half a million soldiers. Over the last decade, the United States Supreme Court has increased state sovereignty and state immunity to levels unseen since the pre-Civil War period. The Court’s opinions are structured in a manner that relies significantly on historical methodologies. The multiple rationales used to structure the Justices’ arguments clash, and the Justices spar with one another over who is being more true to history. This current historical tug of war may be better understood through an analysis of the different historical methodologies employed in the Court’s sharply divided opinions. While arguments over history will never end, understanding the methods used by the Justices to find support in the past will better explain the ways the Supreme Court brings history into the issues that affect our lives today. Part I of this article begins with an explanation of the significance of the current federalism debate and the importance of examining the historical arguments used to support the various Justices’ opinions of state sovereignty today. Part II describes the manner in which history has been used by the Supreme Court in the past, especially since the 1980s. In Part III, this article dissects four recent states’ rights cases and examines the use of history by the Justices. Finally, Part IV argues that the Justices employ multiple rationales, and these different methodologies, along with the incorporation of selective historical evidence, explain the sharp split in the Court’s states’ rights opinions. Through the use of four historical methodologies – the founding period, precedent, the Civil War and New Deal, and pre-ratification American history – the Justices examine selective historical evidence to construct competing Tenth and Eleventh Amendment federalism opinions.

history, legal history, historical methodologies, supreme court, states' rights, tenth amendment, eleventh amendment, constitution

Abstract:
Herman Talmadge, who died March 21, 2002, was a governor, senator, and Georgia icon who controlled state politics for much of the last half of the 20th century. While many events in Talmadge’s life deserve attention, one event in particular stands out amongst the trials and tribulations, victories and scandals in this long American political life. In 1946, the Georgia gubernatorial election brought a state government to its knees, a state Supreme Court to the height of its power and Talmadge into the national spotlight as a revolver toting aspiring governor.

Southern Legal History, Georgia Supreme Court, Herman Talmadge

Abstract:
Since the creation of the Corporate Fraud Task Force in July 2002, the United States Department of Justice and the other member agencies have worked feverishly to ferret out corporate crime and punish wrongdoers. The Task Force, in the three years following the announcement of its formation by President Bush, has instituted hundreds of investigations, secured over five hundred corporate fraud convictions or guilty pleas, and charged over nine hundred defendants. Not to be outdone by federal law enforcement authorities, some state attorneys general have followed suit, pursuing their own well-publicized probes of corporate practices. The stakes in these investigations are enormously high, not just for the individuals whose conduct comes under review, but also for the corporations themselves. Corporations risk substantial criminal fines and civil penalties, and they often must endure a host of investigation-related side effects such as a disruption of business and a diminution of market capitalization. The severity of these consequences, and the ease with which criminal liability can attach to an organization for the acts of employees within the scope of their authority, means that no responsible company can afford to ignore suspected wrongdoing within its ranks.

The government’s new focus on corporate America, in turn, has generated a sharp increase in the number of internal investigations. Today, perhaps more than ever, internal investigations are an integral part of the business landscape. In general, a corporation will undertake an internal investigation for one of two reasons. First, an internal investigation may be launched in response to a government inquiry, such as a grand jury subpoena or a letter of informal inquiry by the Securities and Exchange Commission (“SEC”). Second, a corporation may initiate an investigation to address an issue brought to its attention through internal means, such as an allegation of wrongdoing by an employee of the company or an issue identified by the company’s external auditor. As a result of the Sarbanes-Oxley Act of 2002 and the obligations that it imposes on public corporations, these internally-sparked investigations have increased dramatically in the post-Enron business climate, so much so that “internal investigation attorneys are becoming a dreaded necessity for a growing number of public companies.”

Regardless of the event that triggers an internal investigation, attorneys engaged to handle this kind of matter for a corporation often confront complex issues unique to this practice area. To navigate these issues successfully requires a basic understanding of the ways in which missteps by counsel can compound the client’s problems and potentially undermine the engagement. This article offers certain key points to keep in mind when conducting an internal investigation, the consideration of which will better prepare counsel for the challenges that may surface and the pitfalls and perils that could lead to problems for both client and attorney.

Crime, White Collar Crime, Corporate Crime, Internal Investigation, Privilege, Waiver, Client, Conflict of Interest

Abstract:
The number of law suits brought against corporations in the United States as a result of employee whistleblowers has risen in recent years. There are two predominant reasons for this trend. First, publicity surrounding cases such as Enron in the early 2000s have made employees more sensitive to potential misconduct in the workplace. For instance, a 2007 study found that 56% of employees reported that they had observed conduct that “violated company ethics standards, policy, or the law” in the previous twelve months. Second, employees are now more aware of the role of whistleblowers and are more likely to report potential misconduct to outside entities rather than utilizing internal reporting mechanisms. According to a recent report from the Department of Justice, since 2001, 300 to 400 civil cases have been filed each year under the False Claims Act (“FCA”) by employees charging that their companies defrauded the government. Furthermore, in 2007 the Department of Justice recovered $1.45 billion in FCA whistleblower actions.

Once an employee has decided to become a whistleblower, the initial battle is lost. The challenge for corporations today, therefore, is to create an environment in which employees feel secure reporting potential misconduct through internal channels. This can only be achieved, however, by creating an investigative structure that ensures the reporting employee feels his or her concerns have been properly investigated and addressed. Furthermore, the corporation must respond to the employee’s complaint in a manner that does not lead the employee to believe he or she is being or will be retaliated against because of their actions.

This article focuses on these issues and the mechanisms by which corporations can greatly diminish the chances that an employee will become a whistleblower, while simultaneously creating a corporate culture of openness and trust that will increase employee morale and assist with the corporation’s overall compliance and ethics mission.