The Value of Identity Article
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Marco Jimenez, The Value of Identity, 2018 Jotwell 1 (2018)Clicking on the button will copy the full recommended citation.
Articles
Jailing of Peacemaker Threatens Colombia’s Demobilization of Transborder Criminal Organizations and Urban Criminal Gangs Article
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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.
White Collar Shortcuts Article
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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.
Martha Fineman, More Transformative Than Ever Article
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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.
Does “We the People” Include Corporations? Article
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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.
Disruptive Innovation in Criminal Defense: Demanding Corporate Criminal Trials Article
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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.
The Shifting Boundaries of the Clean Water Act Jurisdiction Article
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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.
Time Suck: How the Fundraising Treadmill Diminishes Effective Governance Article
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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.
Campaign Finance, Free Speech, and Boycotts Article
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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.
A View from the Bridge: A Brief Look at the Progression of Cases of Elder Financial Exploitation Prosecutions Article
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Rebecca C. Morgan, A View from the Bridge: A Brief Look at the Progression of Cases of Elder Financial Exploitation Prosecutions, 25 Elder L.J. 271 (2018)Clicking on the button will copy the full recommended citation.
Elder financial exploitation is a continuing problem in the United States, and the prosecution of elder financial exploitation has failed to keep up with modern problems and laws. In this Article, the Authors explore nearly three decades of appellate decisions from across the United States. In these examples, the Authors show how different courts have treated both victims and defendants through their appellate decisions. The Authors examine the basic elements that make up financial exploitation throughout the country. Cases from many courts, and of differing notoriety are explored, noting the difference in law and discretion across the United States. Finally, the Authors suggest resources for prosecutors and discuss how the United States can catch up with those who are taking advantage of an elderly population.