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Anne E. Mullins, Reframing the Mundane: From Research to Relationships, 26 Perspectives 26 (2018)Clicking on the button will copy the full recommended citation.
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Louis J. Virelli, (A Bit More) On Judicial Speech and the First Amendment, 79 Ohio St. L.J. Furthermore 83 (2018)Clicking on the button will copy the full recommended citation.
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Luz Estella Nagle, Jailing of Peacemaker Threatens Colombia’s Demobilization of Transborder Criminal Organizations and Urban Criminal Gangs, 34 Int'l Enforcement L. Reporter 358 (2018)Clicking on the button will copy the full recommended citation.
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Ellen S. Podgor, White Collar Shortcuts, 2018 U. Ill. L. Rev. 925 (2018)Clicking on the button will copy the full recommended citation.
In the aftermath of financial and corporate frauds, aggressive government policy is apparent. But while touting a crackdown to correct past prosecution failures, one sees the government using shortcuts in both agency policy and prosecutorial practices. These shortcuts can be seen in the investigative, charging, and plea areas. There is an increased use of search warrants, wiretaps and failures to adhere to criminal discovery obligations. So too, one sees the government charging shortcut offenses such as perjury, obstruction of justice and false statements as opposed to the underlying conduct that was initially being investigated. Taking advantage of over-federalization and over-criminalization is seen in the stacking of multiple charges, tacking on conspiracy and money-laundering offenses, and in adding new plea waivers to secure finality of all issues and avoid future litigation. While these aggressive policy moves may seem efficient, the use of shortcuts has serious consequences that undermine deterrence and legitimacy in the criminal justice process.
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Michèle Alexandre, Martha Fineman, More Transformative Than Ever, 67 Emory L.J. 1135 (2018)Clicking on the button will copy the full recommended citation.
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Ciara Torres-Spelliscy, Does “We the People” Include Corporations?, 43 Human Rights Quarterly 16 (2018)Clicking on the button will copy the full recommended citation.
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Ellen S. Podgor, Disruptive Innovation in Criminal Defense: Demanding Corporate Criminal Trials, 69 Mercer L. Rev. 825 (2018)Clicking on the button will copy the full recommended citation.
Perhaps the least sympathetic party in a corporate criminal matter is a corporate entity that has engaged in criminal conduct. If the corporation is large, subject to third party civil actions, and especially in an industry dependent upon a public perception of ethical behavior, a criminal indictment can destroy the entity, and few in society are likely to be concerned. To ameliorate the collateral consequences of an indictment, corporations are quick to cooperate with the government by signing onto non-prosecution, deferred prosecution, or plea agreements. The government secures a hefty fine and obtains from the entity the names and evidence against individuals who allegedly engaged in the corporate misconduct.
But what if companies refused to cooperate? What if corporations demanded speedy trials? What if the power and resources of the entity were used to protect innocent or naïve corporate constituents? What if the corporate fines were directed to third parties who could assist in correcting any wrongdoing?
Proposed here is the idea that corporations need to reevaluate folding to the government and instead present a united front against government attempts to extort money and evidence from them to the detriment of their corporate constituents.
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Royal C. Gardner and Erin Okuno, The Shifting Boundaries of the Clean Water Act Jurisdiction, 35 Wetland Science & Practice 317 (2018)Clicking on the button will copy the full recommended citation.
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Ciara Torres-Spelliscy, Time Suck: How the Fundraising Treadmill Diminishes Effective Governance, 42 Seton Hall Legis. J. 271 (2018)Clicking on the button will copy the full recommended citation.
There are just not enough hours in the day to get the job done! This type of “time drought” identified by cognitive scientists takes on democratic significance if the person experiencing it is a democratically elected official. Those elected officials may thereby lack the ability to effectively represent the constituents who put them in office. For federal elected officials, one of the causes of the lack of time to craft policy (the job) is caused by political fundraising burdens (the distraction). As one Congressman put it bluntly, campaign fundraising has become an incredible “time suck” for lawmakers.
The election in 2016 was the most expensive federal election to date. The high price tag in 2016 was attributable to Congressional races. Thus my primary focus in this piece will be on the fundraising burdens experienced by incumbent Members of Congress. Participating in the fundraising arms race is rational behavior for most candidates, because typically the candidate with the bigger campaign war chest wins the election. This fundraising treadmill leads to deleterious effects including dependence on lobbyists for fundraising assistance and for policy making, as well as an unhealthy reliance on a small oligarchic subset of American political donors. Without public financing for Congressional candidates, the only way to avoid the burden of fundraising is to be independently wealthy. And yet, the Roberts Supreme Court seems particularly tone deaf to arguments about preserving the ability of a non-wealthy incumbent elected officials to do their official duties under Article I of the Constitution.
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Ciara Torres-Spelliscy, Campaign Finance, Free Speech, and Boycotts, 41 Harv. J.L. & Pub. Pol'y 153 (2018)Clicking on the button will copy the full recommended citation.
I gave a speech at Columbia Law School at the request of the Federalist Society about campaign finance and boycotts. This is the transcript of that speech as annotated by Harvard Law students.