• Selected
• Entire List

Abstract:
Sentencing white collar offenders is difficult in that the economic crimes committed clearly injured individuals, but the offenders do not present a physical threat to society. This Article questions the necessity of giving Draconian sentences, in some cases in excess of twenty-five years, to non-violent first offenders who commit white collar crimes. The attempts by the U.S. Sentencing Commission to achieve a neutral sentencing methodology, one that is class-blind, fails to respect the real differences presented by these offenders. As the term white-collar crime has sociological roots, it is advocated here that sociology needs to be a component in the sentencing of white collar offenders.

sentencing, white collar crime, criminal law, corporate crime, sociology

Abstract:
This article examines deferred and non-prosecution agreements entered into between corporations and the Department of Justice (DOJ) through the lens of contract policing theory. It adds a new dimension to the contractual law now applicable to plea bargains and proffer agreements by suggesting key provisions that should be prohibited in deferred prosecution agreements. Three provisions common to many deferred prosecution agreements, or used by the government as leverage to secure a deferred prosecution agreement, are of particular interest here. These are: (1) the requirement of a corporation to waive its attorney-client privilege; (2) the determination of a breach of the agreement being within the sole province of the government; and (3) the provision that corporations not abide by previously negotiated contract terms that allow the corporation to pay the attorney fees of corporate employees. Specifically, this article examines the viability of specific provisions within these agreements when matched up against contract policing principles such as duress and unconscionability. This article concludes that corporations are deprived of basic contract rights as a result of the over-powering prosecutorial power used in reaching these agreements.

corporate crime, deferred prosecution, white collar crime, contract, unconscionability, duress

Abstract:
Obstruction of justice, with its many different statutes, is a crime that prosecutors can use with relative ease. It covers a wide breadth of activity and has few limitations. This paper examines the prosecutorial use of obstruction charges in the cases of Martha Stewart and Arthur Andersen, LLP. Although the statutes differed in these two prosecutions, with Arthur Andersen, LLP., prosecuted for the crime of obstruction of justice under 18 U.S.C. Section 1512, and Martha Stewart, prosecuted for several criminal charges including obstruction of justice under 18 U.S.C. Section 1505, both demonstrate how prosecutors can leave unfinished the original activity that was the subject of investigation to proceed with the easier obstruction charge.

This article provides a way to restrict prosecutors in their use of the crime of obstruction of justice when it is used solely for expediency purposes. In essence, it reads in an element of materiality as required for this crime in a manner similar to how the Supreme Court included materiality for fraud prosecutions. By adding an element of materiality as a requirement for an obstruction conviction, prosecutors are forced to complete investigations that can be completed on the substantive charges. In contrast, investigations that cannot continue because the obstructive conduct precludes continuation because of either destruction of evidence or intimidation of witnesses, still have available the ability to appropriately punish the activity via a charge of obstruction of justice.

Obstruction of Justice, White Collar Crime, Criminal Law

Abstract:
In the aftermath of corporate scandals and the establishment of the President's Corporate Fraud Task Force, the Department of Justice has moved with a new emphasis to curb corporate criminality. Congress has also imposed new legislation with stricter compliance and more stringent oversight to curtail corporate criminality. Corporations for the most part have met these new demands and instituted effective compliance programs to prevent and detect criminal conduct. Yet despite these efforts, corporations with the best of motives, with the best of efforts, and with the utmost in due diligence, can still find themselves the subject of a criminal prosecution. This Essay advocates that this new landscape should allow corporations to argue a good faith affirmative defense.

white collar crime, criminal law, corporate criminality, corporations, good faith defense

Abstract:
David McNab and David Pasquantino were sentenced to prison for very different crimes, but in both cases the laws of another country served as a basis for the United States prosecutions. This Article examines and analyzes the McNab and Pasquantino cases, and in this process considers the issues faced when a prosecution is premised on another country's laws. For example, a key issue in the McNab case was whether the United States correctly interpreted Honduran law. In Pasquantino, the Court struggled with the use of a generic federal statute, wire fraud, to prosecute conduct that violates the revenue laws of another country.

A question explored in this Article is whether a United States prosecution should be allowed when the supposed harm caused by the criminal conduct is predominantly a harm to another country. This Article recommends that extraterritorial prosecutions, including those in the United States that use foreign law, need to give more recognition to the location of the social harm.

White collar crime, extraterritoriality, prosecutions, foreign law

Abstract:
Prosecutors are afforded enormous discretion in a multitude of decisions. Internal guidelines of the Department of Justice (DOJ) assist federal prosecutors in making the decisions that fall within their discretionary realm. Although these guidelines are policy statements and not legislative rules, they offer an element of consistency to the decision-making process, provide education for newcomers to the department, and can serve as a restraint on prosecutorial discretion.

Prosecutors do not always adhere to these internal guidelines. This article studies ways to achieve better compliance. It examines remedies that achieve a balance between continuing the practice of having guidelines and yet also having meaningful policies that are adhered to by department employees.

DOJ, white collar crime, guidelines, federal criminal law, criminal law, administrative policy

Abstract:
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 Olis, and Jeffrey Skilling - all who proceeded to trial after criminal charges were brought against them; and contrasting these three with KPMG, Gene Foster, and Andrew Fastow, all who secured plea agreements or deferred prosecution agreements with reduced sentences and finite results. The concern here is that innocence or guilt does not always frame the judicial process in white collar cases. The risk of trial becomes so great that in order to minimize the possible consequences, innocence becomes an irrelevancy. Although the plea bargain to trial differential existed for many years in crimes outside the white collar crime context, the high sentences now being given to individuals and entities charged with white collar crimes place these crimes in comparable stead with street crimes. This gives pause to whether the next phase of wrongful convictions might move beyond street crimes into the white collar world.

Abstract:
Should blogs count as legal scholarship for purposes of tenure? This essay looks at the line between legal scholarship and service. It considers the value of blogging and the role it should play in a person's tenure review.

blogging, blogs, tenure, legal education, scholarship, service

Abstract:
Should the United States prosecute computer fraud crimes that occur extraterritorially? This Article examines traditional methods used to determine whether jurisdiction is appropriate for prosecution of criminal conduct that occurs outside the United States. Focusing specifically on computer fraud crimes, the question becomes whether traditional methodologies should remain applicable in light of the ease of use and worldwide accessibility of computers. Although the Article discusses some of the ongoing international discussions related to jurisdiction of computer crimes, it focuses on national issues that can remain irrespective of the adoption of international treaties. This Article stresses the importance of tempering prosecution of extraterritorial computer fraud acts.

Computer, Fraud, Criminal, International

Abstract:
The most effective way to achieve corporate compliance is to have individuals comply with the law. The reality, however, is that punishing misconduct, a reactive model, is the common methodology used to attain future legal compliance. Focusing more resources on the front end and using a pro-active model to achieve compliance would keep the corporate structure whole and yet also provide a sound basis for eradicating corporate criminality. This Essay proposes that an education model be implemented, with the government more actively participating in promoting compliance with the law.

corporate criminality, white collar crime, corporate compliance, punishment, deferred prosecutions

Abstract:
This article provides an organized list of considerations in teaching a live synchronous electronic education class. It offers a detailed course planning checklist.

distance learning, electronic education, best practices

Abstract:
This Essay examines prosecutorial discretion, using the decisions made in the Jena Six incident as its example for change. Two crucial considerations, omitted in this decision-making process, are offered here. First is the importance of examining cases globally as opposed to making prosecutorial decisions using a one-dimensional process. Looking only at whether specific facts support a particular charge fails to account for promoting justice in situations that might be threaded to a particular theme. Merely matching facts to elements of a statute fails to provide a thoughtful recognition of what is in fact a "just" resolution. Second is the need to be vocal when an injustice warrants correction. The affirmative duty of a prosecutor to promote justice has both symbolic and practical implications.

This Essay examines the discretionary decision-making process from the perspective of legal and ethical mandates that are intended to guide prosecutors in their choices. In looking at the hortatory guidance provided to prosecutors, it considers the role of compassion and how compassion can be used to ensure fairness in the process. While personalities can clearly influence a charging decision, it is important to make certain that the decisions are not made as a one-dimensional process. Rather, it is necessary that the decision-making process examines all factors and circumstances in order to make certain that the prosecutor acts as a true "minister of justice."

discretion, ethics, criminal law, race, Jena Six, compassion, philosophy

Abstract:
This article dissects the mail fraud statute, examining briefly its historical origins. It then concentrates on developments to the crime of mail fraud, namely a legislative enactment that redefines "scheme or artifice to defraud" to include the "intangible right of honest services" and case law that enlarges the "infurtherance" element of the statute. This Article highlights the confusion and ambiguity caused by these statutory and case-law modifications. It argues that mail fraud, while moving further from its roots, has reached a level that permits its haphazard application to a wide spectrum of criminal conduct. The Article calls for legislative modification and restructuring of the statute, coupled with strict interpretation by the courts, to transform the existing "stopgap" provision into a recognizable crime.

mail fraud, white collar crime, fraud, criminal law, federal criminal law

Abstract:
This essay provides a critical analysis of Attorney General Ashcroft's Order permitting the government to monitor attorney-client conversations in prison. It provides a summary of the Order, the responses to the Order, and discusses ongoing litigation that contests the Order. The Essay also provides, as background, the contextual setting that allows for monitoring under existing provisions in Title III and FISA. After examining the constitutional issues emanating from Ashcroft's Order permitting attorney-client monitoring in prison, there is a discussion of the implications to the Attorney-Client and Work Product Privileges. Of particular focus is the ethical responsibilities of counsel when maintaining contact with a client when monitoring may be occurring. The Essay considers the importance of finding an appropriate balance between civil liberties and national security, but maintains that the Attorney General should not be permitted to disregard constitutional rights, the attorney-client privilege and the ethical responsibilities of attorneys, claiming that these measures are necessary to fight terrorism.

Abstract:
The "objective territorial principle" is a common jurisdiction base used in the United States for the prosecution of extraterritorial crimes. With increased globalization, it becomes easier for a prosecutor to demonstrate that conduct occurring outside the United States is having a substantial effect in this country. Although "objective territoriality" expands the limits of extraterritorial jurisdiction, it sometimes fails to offer jurisdiction for conduct directly targeting the United States government. This article suggests that "objective territoriality" needs to be reconfigured to provide more respect for the laws of other countries. Likewise, in keeping with the decision of United States v. Bowman, it is important to provide extraterritorial jurisdiction when necessary to protect government processes of the United States. This article offers the concept of "defensive territoriality" as an alternative to "objective territoriality." It distinguishes this new concept from the "protective principle" and presents contextual application of how this new principle might operate in determining issues of extraterritoriality.

International, Criminal, Exterritoriality, Jurisdiction

Abstract:
Omitted from most of the recent discussions on the federalization of criminal law is the impact of federal investigations and prosecutions involving international activities. This essay specifically focuses on the international flavor developing in the prosecution of white collar crime. It discusses statutes with clear legislative language indicating extraterritoriality through either a direct international focus (Foreign Corrupt Practices Act), or through the specific incorporation of an extraterritorial provision in the statute. The essay next addresses judicial interpretation of white collar statutes where there has been no explicit reference to extraterritoriality in the statute. Jurisdiction bases in international law also are considered in the essay. The essay offers a sampling of the jurisdiction questions that have arisen as a result of white collar criminal activity exceeding the borders of the United States.