{"title":"At the Intersection of Due Process and Equal Protection: Expanding the Range of Protected Interests","authors":"V. Samar","doi":"10.2139/ssrn.3206326","DOIUrl":"https://doi.org/10.2139/ssrn.3206326","url":null,"abstract":"","PeriodicalId":44667,"journal":{"name":"Catholic University Law Review","volume":"68 1","pages":"87-136"},"PeriodicalIF":0.2,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/ssrn.3206326","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68574120","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The last few years have borne witness to a shift regarding how to address issues of oppression and social injustice. Across many different advocacy points - from police brutality to sexual violence - there seems to be a consensus that simply engaging the oppressor or the victim is not enough to affect real social change. The consensus itself is not new: it has been at the heart of many social justice movements over the years. However, what is new is the explicit evocation of the bystander within this framework. Too often, in conversations on conflicts generally (and negative human rights impact specifically), bystanders have been relegated to the sidelines, with no defined, specific role to play and no discussion within the larger narrative. Now, however, -- through the use of bystander intervention training -- these actors are taking on a more prominent role. In previous articles, I have stated that the rhetoric and posture that transnational corporations (TNCs) maintain vis-a-vis human rights impacts is that of a bystander. Frequently, when human rights abuses occur, TNCs find themselves in the position of having to acknowledge their presence in the area of the underlying conflict, while profusely maintaining that none of their actions caused the harm against the community. Building off this prior work, this article seeks to answer the following question: are there lessons that can be learned from bystander intervention training in other contexts, that can be used for the benefits of TNCs within the field of business and human rights? I conclude that what is lacking in the current discourse on corporate policies regarding addressing negative human rights impacts is an articulation regarding when, and under what circumstances, it is appropriate for corporations to intervene in negative human rights disputes. This goes beyond the current proposals for human rights due diligence frameworks in that, rather than merely undergoing an assessment and then reporting this information out (as is required by most current legal frameworks that address business and human rights reporting) this would help corporations – informed by a bystander intervention framework – to engage with either the oppressor or the oppressed in a way that directly minimizes human rights abuses.
{"title":"Easing ‘The Burden of the Brutalized’: Applying Bystander Intervention Training to Corporate Conduct","authors":"Jena Martin","doi":"10.2139/SSRN.3135490","DOIUrl":"https://doi.org/10.2139/SSRN.3135490","url":null,"abstract":"The last few years have borne witness to a shift regarding how to address issues of oppression and social injustice. Across many different advocacy points - from police brutality to sexual violence - there seems to be a consensus that simply engaging the oppressor or the victim is not enough to affect real social change. The consensus itself is not new: it has been at the heart of many social justice movements over the years. However, what is new is the explicit evocation of the bystander within this framework. Too often, in conversations on conflicts generally (and negative human rights impact specifically), bystanders have been relegated to the sidelines, with no defined, specific role to play and no discussion within the larger narrative. Now, however, -- through the use of bystander intervention training -- these actors are taking on a more prominent role. \u0000 \u0000In previous articles, I have stated that the rhetoric and posture that transnational corporations (TNCs) maintain vis-a-vis human rights impacts is that of a bystander. Frequently, when human rights abuses occur, TNCs find themselves in the position of having to acknowledge their presence in the area of the underlying conflict, while profusely maintaining that none of their actions caused the harm against the community. Building off this prior work, this article seeks to answer the following question: are there lessons that can be learned from bystander intervention training in other contexts, that can be used for the benefits of TNCs within the field of business and human rights? I conclude that what is lacking in the current discourse on corporate policies regarding addressing negative human rights impacts is an articulation regarding when, and under what circumstances, it is appropriate for corporations to intervene in negative human rights disputes. This goes beyond the current proposals for human rights due diligence frameworks in that, rather than merely undergoing an assessment and then reporting this information out (as is required by most current legal frameworks that address business and human rights reporting) this would help corporations – informed by a bystander intervention framework – to engage with either the oppressor or the oppressed in a way that directly minimizes human rights abuses.","PeriodicalId":44667,"journal":{"name":"Catholic University Law Review","volume":"68 1","pages":"1-32"},"PeriodicalIF":0.2,"publicationDate":"2018-03-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45589150","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Partisan gerrymandering is frequently condemned for distorting democracy and causing unfair representation, and many reformers have called upon federal courts to prohibit the practice. However, the judiciary has struggled to advance a coherent approach to partisan gerrymandering. Conservative justices have argued the practice raises a non-justiciable political question, and the remainder of the bench has failed to reach any agreement on the right test. This Article argues that courts have struggled with the law because the threat from partisan gerrymandering is illusory. Parties are responsive to external conditions, including the composition of legislative districts. Therefore, voters, candidates, and party leaders can adapt to compete for the constituencies of redrawn districts. When partisan gerrymandering appears harmful, the true culprit is the fracturing of the electorate into factions due to voters’ political preferences. The appropriate forum for resolving such substantive disputes among citizens is democratic contestation, not rights-based judicial intervention. Subsequently, reformers’ hope that eliminating partisan gerrymandering will fix American democracy is misplaced. This divergence between the real character of partisan gerrymandering and its treatment by the legal academy is responsible for the lack of clarity in the jurisprudence. To support this conclusion, this Article draws on social science analysis of political behavior to offer a unified perspective on party affiliation, voter preference, and constitutional rights.
{"title":"Partisan Gerrymandering and the Illusion of Unfairness","authors":"Jacob Eisler","doi":"10.2139/SSRN.2993876","DOIUrl":"https://doi.org/10.2139/SSRN.2993876","url":null,"abstract":"Partisan gerrymandering is frequently condemned for distorting democracy and causing unfair representation, and many reformers have called upon federal courts to prohibit the practice. However, the judiciary has struggled to advance a coherent approach to partisan gerrymandering. Conservative justices have argued the practice raises a non-justiciable political question, and the remainder of the bench has failed to reach any agreement on the right test. This Article argues that courts have struggled with the law because the threat from partisan gerrymandering is illusory. Parties are responsive to external conditions, including the composition of legislative districts. Therefore, voters, candidates, and party leaders can adapt to compete for the constituencies of redrawn districts. When partisan gerrymandering appears harmful, the true culprit is the fracturing of the electorate into factions due to voters’ political preferences. The appropriate forum for resolving such substantive disputes among citizens is democratic contestation, not rights-based judicial intervention. Subsequently, reformers’ hope that eliminating partisan gerrymandering will fix American democracy is misplaced. This divergence between the real character of partisan gerrymandering and its treatment by the legal academy is responsible for the lack of clarity in the jurisprudence. To support this conclusion, this Article draws on social science analysis of political behavior to offer a unified perspective on party affiliation, voter preference, and constitutional rights.","PeriodicalId":44667,"journal":{"name":"Catholic University Law Review","volume":"67 1","pages":"229-279"},"PeriodicalIF":0.2,"publicationDate":"2017-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48580490","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The D.C. Circuit’s 2015 opinion, Cause of Action v. Federal Trade Commission, authored by its Chief Judge, Merrick Garland, is a landmark pro-transparency opinion that held an executive branch agency accountable for misreading two Freedom of Information Act fee provisions. In addition to its contribution to the news media and public interest FOIA requester communities, the opinion evidences a pervasive methodological flaw in the congressional approach to FOIA reform. The FOIA statute is inefficient because it invites and requires agency interpretation of key provisions, which is inconsistent with its non-deferential de novo standard of review. Given the natural disincentives executive branch agencies have to comply with the oversight and transparency efforts of news media and public interest actors, agencies exploit FOIA in a manner that is contrary to its public policy goals. This statutory problem survives the FOIA Improvement Act of 2016. This essay makes the case that Congress should approach FOIA reform with greater legislative precision to better achieve its public policy goals. FOIA is unique among legislative enactments because it is an omnibus statute of transparency and oversight, organic to no agency, and one that creates powerful disincentives for agency compliance with its goals. Its de novo standard of review conveys an absence of deference that is in tension with its provisions that delegate agency interpretative authority.
由首席法官梅里克·加兰(Merrick Garland)撰写的华盛顿特区巡回法院2015年的意见，诉因诉联邦贸易委员会(Cause of Action v. Federal Trade Commission)，是一个具有里程碑意义的支持透明度的意见，要求行政部门机构对误读《信息自由法》的两项收费条款负责。除了对新闻媒体和公共利益的《信息自由法》申请者群体的贡献外，该意见还证明了国会在《信息自由法》改革方面普遍存在的方法缺陷。《信息自由法》法规效率低下，因为它要求并要求机构对关键条款作出解释，而这与其不尊重的从头审查标准不一致。鉴于行政部门机构必须遵守新闻媒体和公共利益行为者的监督和透明度努力的自然阻碍因素，各机构以与其公共政策目标背道而驰的方式利用《信息自由法》。这一法定问题在2016年《信息自由法改进法案》中仍然存在。本文认为，国会应该以更精确的立法来对待《信息自由法》改革，以更好地实现其公共政策目标。《信息自由法》在立法中是独一无二的，因为它是一项关于透明度和监督的综合性法规，不隶属于任何机构，并对机构遵守其目标产生强有力的抑制作用。它的从头开始的审查标准传达了一种不尊重，这与其授权机构解释权的规定相矛盾。
{"title":"Oversight of Oversight: A Proposal for More Effective FOIA Reform","authors":"Aram A. Gavoor, Daniel Miktus","doi":"10.2139/SSRN.2878410","DOIUrl":"https://doi.org/10.2139/SSRN.2878410","url":null,"abstract":"The D.C. Circuit’s 2015 opinion, Cause of Action v. Federal Trade Commission, authored by its Chief Judge, Merrick Garland, is a landmark pro-transparency opinion that held an executive branch agency accountable for misreading two Freedom of Information Act fee provisions. In addition to its contribution to the news media and public interest FOIA requester communities, the opinion evidences a pervasive methodological flaw in the congressional approach to FOIA reform. The FOIA statute is inefficient because it invites and requires agency interpretation of key provisions, which is inconsistent with its non-deferential de novo standard of review. Given the natural disincentives executive branch agencies have to comply with the oversight and transparency efforts of news media and public interest actors, agencies exploit FOIA in a manner that is contrary to its public policy goals. This statutory problem survives the FOIA Improvement Act of 2016. This essay makes the case that Congress should approach FOIA reform with greater legislative precision to better achieve its public policy goals. FOIA is unique among legislative enactments because it is an omnibus statute of transparency and oversight, organic to no agency, and one that creates powerful disincentives for agency compliance with its goals. Its de novo standard of review conveys an absence of deference that is in tension with its provisions that delegate agency interpretative authority.","PeriodicalId":44667,"journal":{"name":"Catholic University Law Review","volume":"66 1","pages":"525-542"},"PeriodicalIF":0.2,"publicationDate":"2016-11-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2878410","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68412316","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
According to a 2014 poll, nearly two-thirds of Americans believe that the decision whether to have an abortion is one that should be left to a woman and her doctor. And this view is not surprising, for it is the one reflected in Roe v. Wade, which contemplated that an abortion decision would follow a robust discussion between a woman and her physician. An ob/gyn who provides a woman with regular care likely is best equipped to offer this type of consultation, but most ob/gyns do not perform abortions. Therefore, a physician who provides abortion services to a woman often will encounter her solely for that purpose, and it is unrealistic to expect that a simple intake form and a few questions will provide the depth of knowledge necessary for meaningful, patient-specific guidance. In light of these facts and consistent with the importance the Affordable Care Act places on primary care physicians in managing a person’s healthcare, this Article suggests that States adopt measures to facilitate consultation by a woman considering abortion with a physician whom she has chosen to provide her comprehensive care. The Article proposes model legislation designed both to achieve this end and to respect a woman’s constitutional rights.
根据2014年的一项民意调查，近三分之二的美国人认为，是否堕胎的决定应该留给女性和她的医生。这种观点并不令人惊讶，因为在罗伊诉韦德案(Roe v. Wade)中也反映了这一观点，该案认为，堕胎决定必须在妇女和医生之间进行激烈讨论之后做出。为妇女提供定期护理的妇产科医生可能最有能力提供这类咨询，但大多数妇产科医生不做堕胎手术。因此，一个为妇女提供堕胎服务的医生经常会为了这个目的而遇到她，指望一个简单的输入表格和几个问题就能提供有意义的、针对患者的指导所必需的深度知识是不现实的。鉴于这些事实，并与《负担得起的保健法》对初级保健医生在管理个人保健方面的重要性相一致，本条建议各国采取措施，便利考虑堕胎的妇女与她选择的提供全面护理的医生进行磋商。该条提出了旨在实现这一目标并尊重妇女宪法权利的示范立法。
{"title":"Fulfilling the Promise of Roe: A Pathway for Meaningful Pre-Abortion Consultation","authors":"T. Molony","doi":"10.2139/SSRN.2727190","DOIUrl":"https://doi.org/10.2139/SSRN.2727190","url":null,"abstract":"According to a 2014 poll, nearly two-thirds of Americans believe that the decision whether to have an abortion is one that should be left to a woman and her doctor. And this view is not surprising, for it is the one reflected in Roe v. Wade, which contemplated that an abortion decision would follow a robust discussion between a woman and her physician. An ob/gyn who provides a woman with regular care likely is best equipped to offer this type of consultation, but most ob/gyns do not perform abortions. Therefore, a physician who provides abortion services to a woman often will encounter her solely for that purpose, and it is unrealistic to expect that a simple intake form and a few questions will provide the depth of knowledge necessary for meaningful, patient-specific guidance. In light of these facts and consistent with the importance the Affordable Care Act places on primary care physicians in managing a person’s healthcare, this Article suggests that States adopt measures to facilitate consultation by a woman considering abortion with a physician whom she has chosen to provide her comprehensive care. The Article proposes model legislation designed both to achieve this end and to respect a woman’s constitutional rights.","PeriodicalId":44667,"journal":{"name":"Catholic University Law Review","volume":"65 1","pages":"713-772"},"PeriodicalIF":0.2,"publicationDate":"2016-02-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68276342","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In order to render manageable the doctrinal development of the Due Process Clause, the Supreme Court over the last fifty years has attempted to fit its decisions into one of two distinct categories: procedural requirements that the government must satisfy before depriving someone of life, liberty, or property, and substantive limitations on exactly what deprivations the government may accomplish. Unfortunately, neither the law nor life can be so easily classified. The Court has decided numerous cases that defy its recent attempts to divide Gaul into two parts, not three (or more). Several due process doctrines seem to have been isolated from the main body of law that the Court has developed. Some could be at risk of being eliminated by falling into that collection of precedents often described as no longer being "good law." But not all of them will suffer that fate, and the reasons why they will and should remain vibrant are relevant to the rationale for the other doctrines and help explain why they should not be set adrift.Part I of this article will describe the two-fold divide between procedural requirements and substantive limitations that has dominated the discussion of the Due Process Clause. Part II will consider a few categories of due process case law that the Court has not attempted to fit into one or the other of those categories. Part III will discuss the provenance of the Magna Carta, a thirteenth century charter of liberties that later gave birth to the Due Process Clauses in our Constitution. Part IV will wrap up by considering whether there is a home in the Constitution for the Court’s Lost Due Process Decisions. In particular, Part IV will ask whether Magna Carta provides that home and can serve as a base for the ongoing development of constitutional law.
为了使正当程序条款的理论发展易于管理，最高法院在过去五十年中一直试图使其裁决符合两种不同的类别之一:政府在剥夺某人的生命、自由或财产之前必须满足的程序要求，以及对政府可以实现的剥夺的具体内容的实质性限制。不幸的是，法律和生活都不能如此轻易地分类。法院判决了许多案件，这些案件违背了它最近将高卢分成两部分，而不是三部分(或更多)的企图。若干正当程序原则似乎与法院所发展的法律主体相分离。有些法律可能会因为落入那些通常被描述为不再是“好法律”的判例集而面临被淘汰的风险。但并不是所有的宗教都将遭受这种命运，它们之所以会并应该保持活力的原因与其他教义的基本原理有关，并有助于解释为什么它们不应该随波随流。本文第一部分将描述程序性要求和实质性限制之间的双重区别，这两种区别主导了对正当程序条款的讨论。第二部分将考虑法院尚未试图将其归入其中一类的正当程序判例法的几个类别。第三部分将讨论《大宪章》(Magna Carta)的起源，这是一份13世纪的自由宪章，后来催生了我国宪法中的正当程序条款(Due Process Clauses)。第四部分将以考虑宪法中是否有法院失去正当程序的决定作为结束。特别地，第四部分将探讨《大宪章》是否提供了这个家园，是否可以作为宪法不断发展的基础。
{"title":"The Lost Due Process Doctrines","authors":"Larkin, J. Paul","doi":"10.2139/SSRN.2649958","DOIUrl":"https://doi.org/10.2139/SSRN.2649958","url":null,"abstract":"In order to render manageable the doctrinal development of the Due Process Clause, the Supreme Court over the last fifty years has attempted to fit its decisions into one of two distinct categories: procedural requirements that the government must satisfy before depriving someone of life, liberty, or property, and substantive limitations on exactly what deprivations the government may accomplish. Unfortunately, neither the law nor life can be so easily classified. The Court has decided numerous cases that defy its recent attempts to divide Gaul into two parts, not three (or more). Several due process doctrines seem to have been isolated from the main body of law that the Court has developed. Some could be at risk of being eliminated by falling into that collection of precedents often described as no longer being \"good law.\" But not all of them will suffer that fate, and the reasons why they will and should remain vibrant are relevant to the rationale for the other doctrines and help explain why they should not be set adrift.Part I of this article will describe the two-fold divide between procedural requirements and substantive limitations that has dominated the discussion of the Due Process Clause. Part II will consider a few categories of due process case law that the Court has not attempted to fit into one or the other of those categories. Part III will discuss the provenance of the Magna Carta, a thirteenth century charter of liberties that later gave birth to the Due Process Clauses in our Constitution. Part IV will wrap up by considering whether there is a home in the Constitution for the Court’s Lost Due Process Decisions. In particular, Part IV will ask whether Magna Carta provides that home and can serve as a base for the ongoing development of constitutional law.","PeriodicalId":44667,"journal":{"name":"Catholic University Law Review","volume":"66 1","pages":"293-362"},"PeriodicalIF":0.2,"publicationDate":"2015-08-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68238819","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
All states allow the public to anonymously report suspicions of child abuse or neglect to a toll free central phone number. An extensive examination of the policy and practices behind anonymous reporting hotlines indicates that they are widely unregulated and susceptible to abuse. The possible repercussions of an anonymous phone call create costs to the family and society which do not outweigh the potential benefit of allowing anonymous public reports. Under the guise of protecting children, the law has developed in such a way that it infringes on the fundamental rights of parents and children. At the same time, anonymous reporting overburdens the system, causing us to overlook some child maltreatment that can be, and is otherwise, addressed through confidential and mandatory reporting. Given the severity of the rights and lives at stake, it is time to abolish anonymous public reporting of suspected child maltreatment.
{"title":"Abolish Anonymous Reporting to Child Abuse Hotlines","authors":"Dale Margolin Cecka","doi":"10.31228/osf.io/62nze","DOIUrl":"https://doi.org/10.31228/osf.io/62nze","url":null,"abstract":"All states allow the public to anonymously report suspicions of child abuse or neglect to a toll free central phone number. An extensive examination of the policy and practices behind anonymous reporting hotlines indicates that they are widely unregulated and susceptible to abuse. The possible repercussions of an anonymous phone call create costs to the family and society which do not outweigh the potential benefit of allowing anonymous public reports. Under the guise of protecting children, the law has developed in such a way that it infringes on the fundamental rights of parents and children. At the same time, anonymous reporting overburdens the system, causing us to overlook some child maltreatment that can be, and is otherwise, addressed through confidential and mandatory reporting. Given the severity of the rights and lives at stake, it is time to abolish anonymous public reporting of suspected child maltreatment.","PeriodicalId":44667,"journal":{"name":"Catholic University Law Review","volume":"64 1","pages":"51-98"},"PeriodicalIF":0.2,"publicationDate":"2014-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69639414","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article will undertake an ambitious agenda, composed of eight sections: (1) setting forth the proper role of prosecutors; (2) examining the prevalence and consequences of prosecutorial misconduct; (3) identifying the primary types of prosecutorial misconduct; (4) surveying the efforts of all jurisdictions in this regard; (5) dissecting the inadequacies of current practices in coping with the problem; (6) critiquing the proposals set forth by others regarding prosecutorial abuse; (7) examining the methodology and effectiveness of independent judicial commissions as a model for commissions regarding prosecutors; and (8) offering our proposal advocating independent commissions to investigate and determine whether prosecutorial misconduct has occurred and, if so, mete out appropriate sanctions.
{"title":"The Prosecutor Prince: Misconduct, Accountability and a Modest Proposal","authors":"H. Caldwell","doi":"10.2139/SSRN.2239346","DOIUrl":"https://doi.org/10.2139/SSRN.2239346","url":null,"abstract":"This article will undertake an ambitious agenda, composed of eight sections: (1) setting forth the proper role of prosecutors; (2) examining the prevalence and consequences of prosecutorial misconduct; (3) identifying the primary types of prosecutorial misconduct; (4) surveying the efforts of all jurisdictions in this regard; (5) dissecting the inadequacies of current practices in coping with the problem; (6) critiquing the proposals set forth by others regarding prosecutorial abuse; (7) examining the methodology and effectiveness of independent judicial commissions as a model for commissions regarding prosecutors; and (8) offering our proposal advocating independent commissions to investigate and determine whether prosecutorial misconduct has occurred and, if so, mete out appropriate sanctions.","PeriodicalId":44667,"journal":{"name":"Catholic University Law Review","volume":"63 1","pages":"51-102"},"PeriodicalIF":0.2,"publicationDate":"2013-03-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68020274","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"You Can’t Go Home Again: Analyzing an Asylum Applicant’s Voluntary Return Trip to His Country of Origin","authors":"Brett C. Rowan","doi":"10.2139/SSRN.3035696","DOIUrl":"https://doi.org/10.2139/SSRN.3035696","url":null,"abstract":"","PeriodicalId":44667,"journal":{"name":"Catholic University Law Review","volume":"62 1","pages":"733-764"},"PeriodicalIF":0.2,"publicationDate":"2013-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68499461","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Courts hold corporations vicariously liable for the criminal acts of their employees even when those employees have acted contrary to established company policies, explicit employer instructions and without management’s knowledge or ratification. The current legal regime places firms in a quandary - do they rectify the wrongdoing internally and hope that a whistleblower does not report them to the authorities, or do they disclose to the government the fact that rogue employees have violated the law thereby subjecting themselves to high financial penalties, the threat of criminal prosecution, loss of shareholder value, civil suits, suspension of private and public contracts and reputational damage? Corporations must comply and contend with Dodd-Frank whistleblower legislation, which rewards tipsters even if they bypass credible, functioning internal compliance programs; the 2010 UK Bribery Act, which imposes strict liability on companies doing business in the U.K; and the twentieth anniversary of the Federal Sentencing Guidelines used to sentence corporate defendants. With this changing regulatory landscape, it is time to eliminate the current disincentives to optimal investment in compliance. Many academics and even former justice department officials have called for either the abolition of criminal liability or for an affirmative defense. This article raises the bar and proposes an affirmative defense and a presumption against criminal liability for a compliance program that exceeds the current standards and that would be audited by an objective third party free from conflicts of interest or, in the alternative and preferably, pre-certified by the government itself. This defense would level the playing field between corporations and prosecutors, would provide the proper incentives for companies to prevent, detect and disclose criminal activity, and would allow both the private and public sector to allocate their resources more productively.
{"title":"Whistleblowers and Rogues: The Urgent Call for an Affirmative Defense to Corporate Criminal Liability","authors":"Marcia Narine Weldon","doi":"10.2139/ssrn.2028434","DOIUrl":"https://doi.org/10.2139/ssrn.2028434","url":null,"abstract":"Courts hold corporations vicariously liable for the criminal acts of their employees even when those employees have acted contrary to established company policies, explicit employer instructions and without management’s knowledge or ratification. The current legal regime places firms in a quandary - do they rectify the wrongdoing internally and hope that a whistleblower does not report them to the authorities, or do they disclose to the government the fact that rogue employees have violated the law thereby subjecting themselves to high financial penalties, the threat of criminal prosecution, loss of shareholder value, civil suits, suspension of private and public contracts and reputational damage? Corporations must comply and contend with Dodd-Frank whistleblower legislation, which rewards tipsters even if they bypass credible, functioning internal compliance programs; the 2010 UK Bribery Act, which imposes strict liability on companies doing business in the U.K; and the twentieth anniversary of the Federal Sentencing Guidelines used to sentence corporate defendants. With this changing regulatory landscape, it is time to eliminate the current disincentives to optimal investment in compliance. Many academics and even former justice department officials have called for either the abolition of criminal liability or for an affirmative defense. This article raises the bar and proposes an affirmative defense and a presumption against criminal liability for a compliance program that exceeds the current standards and that would be audited by an objective third party free from conflicts of interest or, in the alternative and preferably, pre-certified by the government itself. This defense would level the playing field between corporations and prosecutors, would provide the proper incentives for companies to prevent, detect and disclose criminal activity, and would allow both the private and public sector to allocate their resources more productively.","PeriodicalId":44667,"journal":{"name":"Catholic University Law Review","volume":"1 1","pages":""},"PeriodicalIF":0.2,"publicationDate":"2012-03-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67867520","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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