34,582 research outputs found

    Behind Enemy Phone Lines: Insider Trading, Parallel Enforcement, and Sharing the Fruits of Wiretaps

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    Two key trends were present in the successful prosecution of Raj Rajaratnam and his coconspirators in one of the largest insider-trading conspiracies in history: the use of wiretaps to investigate and prosecute insider trading and a joint effort between the Department of Justice (DOJ) and the Securities & Exchange Commission (SEC) to conduct the investigation. Despite the close working relationship between the DOJ and the SEC, the DOJ never disclosed the fruits of the wiretaps to the SEC, presumably due to its belief that Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (as amended, the “Wiretap Act”)—the comprehensive framework that authorizes the government to conduct wiretaps in certain circumstances—prohibited it from doing so. Though the Second Circuit in SEC v. Rajaratnam ultimately held that the SEC could obtain wiretap materials from the criminal defendants as part of civil discovery, the question of whether direct disclosure of the wiretap materials from the DOJ to the SEC is prohibited has been raised but not yet addressed. This Note analyzes previous cases addressing the construction of the Wiretap Act’s disclosure provisions and concludes that direct disclosure from the DOJ to the SEC is not prohibited by the Act. It further proposes a process by which civil enforcement agencies, such as the SEC, can request disclosure of wiretap materials through the DOJ in such a way that balances the benefits of disclosure against the privacy interests of the parties whose conversations were intercepted

    Punishing Pharmaceutical Companies for Unlawful Promotion of Approved Drugs: Why the False Claims Act is the Wrong Rx

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    This article criticizes the shift in focus from correction and compliance to punishment of pharmaceutical companies allegedly violating the Food, Drug, & Cosmetic Act (FD&C Act) prohibitions on unlawful drug promotion. Traditionally, the Food and Drug Administration (FDA) has addressed unlawful promotional activities under the misbranding and new drug provisions of the FD&C Act. Recently though, the Justice Department (DOJ) has expanded the purview of the False Claims Act to include the same allegedly unlawful behavior on the theory that unlawful promotion “induces” physicians to prescribe drugs that result in the filing of false claims for reimbursement. Unchecked and unchallenged, the DOJ has negotiated criminal and civil settlements with individual pharmaceutical companies ranging from just under ten to hundreds of millions of dollars. In part, companies settle these cases to avoid the potential loss of revenue associated with the exclusion regime administered by the U.S. Department of Health and Human Services, under which companies risk losing the right to participate in federal health care programs. Even more disturbing, these settlements allow DOJ to circumvent judicial review of its enforcement approach, preventing any type of accountability for its legal theories or procedures. This article discusses the traditional enforcement methods employed by the FDA as well as the more recent DOJ prosecutions under the False Claims Act. Although it concludes that the FD&C Act should provide the sole means for prosecuting unlawful drug promotion, it also suggests that when prosecuting pharmaceutical companies under either Act, the government must avoid the temptation to mine companies for large settlements in lieu of developing a more coherent and responsible enforcement strategy

    Equality in the Age of the Internet: Websites under Title III of the Americans with Disabilities Act

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    Under Title III of the Americans with Disabilities Act, no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation. Currently, courts are split on whether websites are places of public accommodation under Title III. There are two predominant methods to determining whether a website is a place of public accommodation: (1) the nexus test, under which websites are places of public accommodation only if a sufficient nexus exists between the website and a physical place; (2) websites are places of public accommodation regardless of a nexus to a physical place. The circuit split highlights the need for the Department of Justice (DOJ) to pass the Title III regulations for websites to provide direct guidance for businesses and courts. The DOJ was expected to release Title III regulations for websites in 2016, but have pushed back the expected release to 2018. Regardless of when, or if, the DOJ releases Title III regulations for websites, companies would benefit from using the many resources available to make their websites accessible as soon as possibl

    A Typology of Justice Department Lawyers\u27 Roles and Responsibilities

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    President Trump’s administration has persistently challenged the legitimacy of the Department of Justice (“DOJ”). In the past, DOJ, like other governmental institutions, has been fairly resilient. Informal norms and practices have served to preserve its proper functioning, even under pressure. The strain of the past three years, however, has been different in kind and scale. This Article offers a typology of different roles for DOJ lawyers and argues that over time the institution has evolved by allocating different functions and responsibilities to different positions within DOJ. By doing so, it has for the most part maintained the proper balance between independence and responsiveness to the administration. By explaining these roles and responsibilities, this Article both describes the different DOJ lawyer roles and seeks to strengthen the institution by making the informal norms that preserve and protect its mission more explicit. The Article concludes that, as DOJ expanded, it evolved to allow the Attorney General to balance the political and legal responsibilities of his office. He does so by advising and implementing administration policies while preventing impermissible political considerations from influencing those DOJ officials who are charged with the neutral interpretation and enforcement of the law

    Executing the Laws or Executing an Agenda: Usurpation of Statutory and Constitutional Rights by the Department of Justice

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    The Department ofJustice (DOJ) can compel individuals and entities to sacrifice their constitutional or statutory rights. The DOJ can do so through brute political force, settlements and consent decrees, selective statutory enforcement, and prosecutions that coerce future actors not to pursue goals contrary to the policy desires of the executive branch. The current regime provides few constraints on the DOJ\u27s ability to abuse its legal authority to achieve political objectives. This unbridled power jeopardizes the rights of both opposing and third parties. This Note examines, in a bipartisan manner, the methods the Justice Department employs that deprive opponents or third parties of statutory or constitutional rights. It weighs the need for efficient law enforcement against the government\u27s duty to protect individual and group liberties. The Note concludes that the current legal checks on DOJ power are insufficient. Congress should continue its present system of legislative policing and pass a modified version of the Tunney Act to limit DOJ abuses beyond the antitrust field

    Investigating Discretionary Environmental Enforcement: a pilot experiment

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    In this work, we conducted a laboratory experiment in order to test the findings of a theoretical environmental enforcement model played as a strategic game where the firm’s behavior is influenced by the course of actions discretionally undertaken by both the U.S. Environmental Protection Agency (EPA) and the U.S. Department of Justice (DOJ). Our experimental findings suggest that the presence of the DOJ can be counterproductive in increasing social welfare, since it implies solely additional enforcement costs, which, in turn, might reduce the probability of conducting inspections by the EPA without affecting the probability of firm’s compliance.classroom experiments, environmental enforcement, environmental economics

    Restoring the Rule of Law through Department of Justice Reform

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    As the nation’s principal law enforcement agency, the Department of Justice (DOJ) plays a unique role in protecting U.S. democracy. Even though the attorney general is appointed by the president and serves at the president’s pleasure, a recognition of the comparable independence of the DOJ from the political priorities of the rest of the executive branch has been critical for maintaining the department’s integrity and credibility over the course of its roughly 150-year history. The DOJ powerfully reinforces both rule of law norms and democratic governance when it faithfully conforms to law and ethics. But the flip side is also true: The DOJ is particularly well situated to corrupt the rule of law when it bends legal principles to suit political aims. This chapter elaborates on a report the authors produced as co-chairs of a bipartisan working group organized in 2020 by the Center for Ethics and the Rule of Law (CERL) at the University of Pennsylvania in conjunction with Citizens for Responsibility and Ethics in Washington (CREW). Issued in October of 2020, the Report examines the tenure of former Attorney General William Barr and the functioning of the DOJ under his leadership. A core theme that arose across the many different areas of DOJ activity in that period was the degree to which the Department had become politicized and the profound effect that this had on the rule of law for the country as a whole. As this Chapter makes clear, politicization within the DOJ is not new. Over the course of the past twenty years, one can observe a wide range of DOJ functions where the effects of politicization are apparent. These include the prosecutorial functions of United States attorneys, legal advice to the Executive Branch from the Office of Legal Counsel, the supervisory role of the Attorney General, Congressional oversight of DOJ and compliance with Congressional subpoenas, appointment of independent special counsels for politically sensitive investigations and DOJ investigations of the intelligence community. This chapter includes specific suggestions for reform of DOJ to restore the law enforcement mission that is so critical to upholding the rule of law

    Socially Beneficial Mergers: A New Class of Concentration Indices

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    The prominent Herfindahl-Hirschman index (HHI), yields a higher concentration level in response to any merger between firms, implying that any merger will decrease the social welfare. Although HHI is used by the Anti-trust Division of the U.S. Department of Justice (AD-DoJ), its merger implications are not fully embraced by the anti-trust authorities. We propose a class of concentration indices that is in line with the spirit of the AD-DoJ’s merger policies and consider different theoretical models which indicate that the AD-DoJ is justified in allowing mergers especially among smaller firms, as they counter the market power of dominant firms.Horizontal Mergers, Industry Concentration, the Anti-Trust Division, Hirfindahl-Hirschman Index (HHI), Dominant Firm(s)

    Analyzing Vertical Mergers to Avoid False Negatives: Three Recent Case Studies

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    This article analyzes three recent vertical mergers: a private antitrust case attacking the consummated merger of Jeld-Wen and Craftmaster Manufacturing Inc. (“CMI”) that was cleared by the DOJ in 2012 but subsequently litigated and won by the plaintiff, Steves & Sons in 2018; and two recent vertical merger matters investigated and cleared (with limited remedies) by 3-2 votes by the Federal Trade Commission in early 2019 -- Staples/Essendant and Fresenius/NxStage. There are some factual parallels among these three matters that make it interesting to analyze them together. First, the DOJ’s decision to clear Jeld-Wen/CMI merger appears to be a clear false negative, and the two dissenting Commissioner suggest that the recent FTC decisions similarly are false negatives. Second, the DOJ and possibly the FTC in Staples/Essendant may have overlooked the “Frankenstein Monster” scenario of input foreclosure. Third, both the DOJ and the FTC in Fresenius/NxStage also apparently relied on the absence of complaints in making their clearance decisions. The analysis of these mergers also suggests several policy implications involving the need to analyze the full range of anticompetitive concerns, the potential for merger retrospectives by independent (as opposed to staff) researchers, the height of the evidentiary burden on the agencies to show competitive harm in light of their limited budgets, and the need for greater transparency in Commission statements, as well as the potential errors in relying on a lack of complaints
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