Claims for reproductive negligence typically fall under two rubrics. Claims by the wrongfully birthed child are almost never countenanced, while claims by the wronged parent generally are. Nevertheless, in these wrongful birth claims, usually recovery is strictly limited. While damages for rearing a child with congenital ailments may be allowed, those for raising healthy child are not. The bases for denying healthy child care are couched in policy grounds and derive from an anathema of abortion, a view of the sanctity of life and an outmoded judicial ipse dixit that child-rearing is one of life’s greatest gifts for which damages will not lie, even if such result shields a clearly negligent defendant. Here, I first point out that current vogue restricting abortion may have an adverse impact on efforts seeking to reverse this approach. I further argue that whatever gifts accrue to healthy child-rearing also may apply to non-healthy children, and the health or disability of the child should not be relevant to the outcome of these claims. And, finally, I propose a novel approach: broadening the damage ambit by noting that the birth of the child is not the only harm accruing to the parents. A court’s focus on only the birthed child and parents’ bliss in raising her ignores the impact of the negligence on the family unit as a whole, and on the parents as individuals and denies the individual plaintiffs their rights of autonomy, liberty and the pursuit of happiness.
Sexual indiscretions, misconduct, and deceits percolate throughout the extensive 2019 Report on The Investigation into Russian Interference in the 2016 Presidential Election —known as the Mueller Report. While Trump’s sexual behaviors are certainly not the focus of the Mueller Report, the report desexualized Trump’s conduct to such an extent that it obscured important matters meriting further exploration. This Article, Sexing the Mueller Report, aims to highlight and expand on the sexual issues raised by the report and contends that the sexual circumstances are not merely titillating distractions, but present important contexts regarding cooperation with foreign powers and obstruction of justice. This Article first discusses the Access Hollywood tape, on which Trump is heard discussing his sexual misconduct toward women, and which the Mueller Report considered briefly related to coordination with foreign actors during the campaign. The Article next discusses the allegations of a Moscow sex tape, which the Mueller Report considered in relation to obstruction of justice, but which might be relevant more broadly. Centrally, this Article examines Trump’s alleged consensual sexual relationships with two women, Karen McDougal and Stormy Daniels, and explores how Trump’s personal attorney, Michael Cohen, came to plead guilty to campaign finance violations involving the payments to both women. Finally, this Article situates the sexual matters raised in the Mueller Report in the possibility of impeachment proceedings, arguing that they are not as peripheral as presently presumed and should be considered as a matter of impeachment.
Facebook’s proposed cryptocurrency, Libra, and its payment system, Novi, pose antitrust challenges and opportunities. By stepping into the financial arena, Facebook raises questions about whether antitrust scrutiny is available at all to review this expansion, and whether the right legal tools exist to protect competition in digital markets. An analysis of Facebook’s position in social media and online advertising reveals the economic value of data, how Libra and Novi can contribute to further market concentration, and how antitrust law has a unique opportunity to demonstrate that it is able to reconcile innovation with competition.
The Fourth Amendment of the U.S. Constitution guarantees the right to be free from unreasonable searches and seizures. Most citizens sleep soundly knowing that no government actor can intrude into the most intimate areas of their lives without due process of law. However, what most citizens do not know is that the same protections they count on are diminished, and arguably non-existent in certain cases, at the borders of the U.S. This Article first explores constitutional limitations at the border as they relate to the search and seizure of travelers’ cell phones or other electronic devices—arguably a doorway to most citizens’ most private and intimate communications. Specifically, this Article addresses the well – settled exception to the Fourth Amendment’s protections: warrants are not required for searches of electronics at the border, even when the electronics are seized and subject to off-site forensic searches. Although federal agencies have provided guidelines instructing border patrol agents on the parameters of searches at the border, this Article argues that short of requiring a warrant to search electronics at the border, no such guidelines sufficiently protect the rights of travelers. Finally, this Article urges the Supreme Court and Congress to act immediately to prevent these gross intrusions into the private lives of travelers, preventing further violation of individual rights.
This Article examines the common law respondeat superior test for corporate criminal liability and proposes that it be expanded to include moral culpability. This Article supports this proposal by noting that the Department of Justice has already incorporated a moral culpability element into its analysis of corporate. criminal liability through the Department’s Principles of Federal Prosecution of Business Organizations. While some might argue that the Department of Justice’s voluntary implementation of a new corporate criminal liability standard is enough, this Article discusses two fundamental flaws with this position. First, while federal prosecutors’ consideration of the Principles of Prosecution may be “mandatory,” these guidelines create no legal rights for corporate defendants. Second, the Principles of Prosecution contain elements for consideration that are outside the appropriate scope of inquiry because they examine the corporation’s actions after the criminal conduct under scrutiny. Thus, this Article proposes a revised common law respondeat superior test that includes a legally binding moral culpability element that focuses on a refined and appropriately limited group of pre-offense and offense-specific factors: the nature and seriousness of the offense; the pervasiveness of wrongdoing within the corporation; the corporation’s history of similar conduct; and the existence and adequacy of the corporation’s preexisting compliance program.
Under the current corporate criminal liability standard, corporations may be prosecuted despite their implementation of corporate compliance programs. This Article argues that the current standard does not adequately serve the detection and deterrence goals of the criminal justice system because it subjects a corporation to criminal liability no matter how diligent the corporation may have been in establishing a corporate compliance program. This Article further argues that the current standard, which resulted from a fundamental misreading of Supreme Court precedent, should be reformed to differentiate between responsible and irresponsible corporations. By examining recent developments in corporate liability, including the Supreme Court’s limitation of corporate liability in civil cases, the Model Penal Code’s “due diligence” approach, the United Kingdom Bribery Act, and amendments to the Unites States Sentencing Guidelines, the Author concludes that changes to the current standard that would allow a corporation’s compliance efforts to constitute a defense to criminal allegations would better serve the goals of the criminal justice system and encourage responsible behavior by corporations.
There has been little scholarly discussion of whether all-as opposed to only some-corporations should be subject to criminal liability. This Article argues that criminal liability is only appropriate for those corporations that have reached a certain level of self-referential complexity. This Article uses organizational theory as a guide to determining when a corporation becomes an autonomous entity capable of criminal culpability. A corporation begins to emerge as a sufficiently complex autonomous actor when its internal rules guide its conduct and determine its membership, and when the corporation becomes distinct from the individuals comprising it. This Article insists that criminal law as applied to individuals should apply to a corporation only when the corporation emerges as an autonomous actor. Thus, culpability should determine the threshold question of guilt and should not be limited to a factor affecting punishment. This Article suggests three main effects of recognizing corporate immatureness as a bar to the imposition of criminal liability on a corporation. First, shell companies would be excluded from criminal punishment. Second, piercing the corporate veil would be consistent with corporate criminal culpability because piercing aims to reach the individuals behind the veil rather than to punish the fictitious corporation. Third, because “immature” corporations should be free from criminal liability, determining a specific benchmark for when a corporation should be considered a full-fledged offender versus a diminished offender is a challenge that should be met in the future.
This Article examines how the evolution of corporate criminal liability in the United States has resulted in the transformation of corporations into “government proxies,” thereby allowing the government to circumvent the Bill of Rights. In support of this argument, the Author discusses how the government provides prosecutorial incentives for corporate cooperation that force corporations to turn against their employees. The Article examines the role of outside counsel in conducting an internal investigation, and the circumstances that often deprive employees of their rights. For instance, corporations may monitor an employee’s phone calls, search an employee’s desk or locker, and even fire an employee if he or she refuses to answer questions. Corporations enjoy near-unlimited powers for investigating wrongdoing. These powers go beyond those possessed by the federal government-corporations are not limited by the Constitution. Consequently, the Author asserts that this partnership between the government and corporate America poses a serious threat to civil liberties in the twenty-first century.
Reciprocity requires corporations to accept criminal responsibility for crimes against society in exchange for the benefits society grants to those corporations. Corporations are legal entities, like persons, that have rights such as freedom of expression and freedom from unreasonable searches and seizures. Allowing corporations to be viewed as artificial entities causes concern because they lack the conscience of a human mind. The proposed solution is to make corporations liable for criminal activities in the same way that a human person would be held liable. Reciprocity has its roots in biology and is evidenced in several instances in nature. A reciprocal relationship is complex-even more so in humans-and is dependent on several factors such as how close the individuals are and what type of activity is being reciprocated. Communities are strongest when individuals feel a high sense of reciprocity toward society. If corporations are to be treated as legal entities, they should also have reciprocal relationships with society. When a corporation criminally acts against society, it must be held liable for its actions. Society can impose this liability on corporations based on the benefits granted to those corporations; a reciprocal relationship between the two is only fair.
Challenging the view inspired by neoclassical economic theory that corporate behavior is best governed by the self-regulating process of the free market, this Article maintains that corporations should continue to be subjected to criminal prosecution for violating the law. Stressing the underlying struggle between social and economic institutions to shape our society, the Author employs institutional economic theory to identify the shortcomings inherent in market-deployed mechanisms as they relate to curtailing corporate criminal behavior. First, the Article details the public mistrust of corporations in light of recent scandals and explores divergent views among academia and practicing attorneys regarding the application of criminal law to artificial entities. Next, the Author examines the relationship of corporations and the criminal law through the lens of institutional economic theory, asserting that financial penalties alone both fail to deter corporate criminal activity and also fail to express society’s view of the social meaning of corporate criminality. The Author questions the claim that individual actors, and not corporations, commit crimes-asserting that corporate cultures tacitly influence and empower the individual actor and thus the entity should bear responsibility for criminal behavior performed in its service. Finally, the Article suggests that assigning criminal liability to corporations appropriately reflects public sentiment and eliminating corporations from the ambit of criminal law runs counter to the legitimate expectations of society.