Corporate Headhunting

A wide range of commentators – including some pretty sophisticated ones – have raked through the ruins of the 2008 financial collapse, confident that there are significant criminal prosecutions to bring against individuals and that the Justice Department should be faulted for its failure to bring them. Their confidence that blockbuster criminal cases could have been made rests on shaky grounds. So, too, does their faith that the hunting of heads is a socially productive response to the collapse. If anything, a focus on headhunting will only distract from, and reduce the pressure for, efforts to explain the collapse and prevent its recurrence. In a country where to make a federal case out of something is simply to treat it seriously, one can hardly quarrel with the instincts of laypeople who think that federal prosecutions are a fitting answer to – even a solution for – massive institutional failures over which extravagantly paid chieftains presided. All too frequently absent from current debates has been sustained engagement with realities of federal criminal law enforcement – realities that even Judge Jed Rakoff, a masterful Southern District of New York trial judge and one of the nation\u27s leading white collar crime experts, gave short shrift to in a recent article. The goal of this essay is to bring somewhat prosaic considerations of law and institutional capacity back into the conversation. While I offer little in the way of regulatory or architectural reform, I simply seek to clear away broad rhetoric that can only impede such efforts

Expanding the Evidentiary Frame for Cooperating Witnesses

One telling feature of this conference as a whole has been the extent to which speakers have focused on the cooperation dynamic outside the courtroom. Prosecutors should take more pains to avoid suborning or even unconsciously encouraging perjury by the cooperator who is looking for a lower sentence. Courts and disciplinary authorities should ensure that such pains are taken. What\u27s interesting is how little attention has been given to changing what happens in front of the jury. Since our assignment has been to think outside of the box (which usually means proposing something interesting but really wrong or dangerous), I\u27d like to broach the question of whether we should do more to align the zealous prosecutor\u27s interest in winning with an institutional interest in justice, by expanding the range of proof that a jury ordinarily considers when it comes to cooperation. Trials of course are a rarity in our system. But interactions with prospective witnesses do take place in the shadow of evidentiary rules. In our effort to structure the interaction between prosecutors and cooperators, it is worth considering the incentives, or more precisely the lack of incentives, that prevailing evidentiary rules give to prosecutors

Comments on the Symposium: Expanding Research Opportunities on the Federal Criminal Justice System

A full understanding of how the federal enforcement bureaucracy will elude us without a rich understanding of what makes prosecutors (or agents) tick. However, I suspect that the best way to reach that goal is not to start with this ultimate question. After all, to look closer to home, what do professors “maximize” when they grade papers? Progress is much more likely to be made if we follow Jim Eisenstein and focus on, first, identifying the most salient features of the bureaucratic environment, and, second, getting a handle on their relative influences

Informants & Cooperators

The police have long relied on informants to make critical cases, and prosecutors have long relied on cooperator testimony at trials. Still, concerns about these tools for obtaining closely held information have substantially increased in recent years. Reliability concerns have loomed largest, but broader social costs have also been identified. After highlighting both the value of informants and cooperators and the pathologies associated with them, this chapter explores the external and internal measures that can or should be deployed to regulate their use

Institutional Coordination and Sentencing Reform

Deciding how much time a person should spend in prison for a serious crime is an inherently moral and political act. And it is certainly coldhearted and philosophically problematic to view sentencing as just an agency problem with criminal defendants as objects of a system in which prison terms are simply outputs. So I will not even try to justify resorting to a narrow institutional perspective as a normative matter. But, for better or worse, those political actors with the greatest influence on sentencing regimes have to think in aggregate terms. While there is considerable normative appeal to the idea of courtroom actors, and particularly judges, crafting an individualized sentence for each defendant, we need also to recognize that for elected officials at the top of the prosecutorial hierarchy, sentencing – particularly sentencing after a negotiated guilty plea – presents just another iteration of the classic problem of administrative law: how to limit the ability of agents to take advantage of informational asymmetries to slack off or import their own policy preferences

Antitrust Standing, Antitrust Injury, and the Per Se Standard

In 1970, a district court observed: We must confess at the outset that we find antitrust standing cases more than a little confusing and certainly beyond our powers of reconciliation. The court could hardly have been faulted, for the confusion it noted has been endemic to these cases since the creation of the treble-damages action. Courts have never read section 4 of the Clayton Act literally to allow treble damages to every plaintiff able to attribute an economic loss to an antitrust violation. This unwillingness to recognize every such injury is fully consistent with the essential principle of antitrust law – that the antitrust laws protect competition as a whole, not individual competitors. Instead of relying upon this substantive principle, however, courts have often used common-law rules of proximate cause to restrict the number of potential plaintiffs. These rules of tort have produced results inconsistent with the goals of antitrust law and have been responsible for much of the confusion in standing case law. This Note argues that the application of tort analysis to questions of standing under section 4 has stemmed from a failure to recognize the nature of the per se standard in antitrust law. Once the limited scope of that standard is appreciated, a standing doctrine more consistent with the concerns of substantive antitrust law can be developed. The standing approach this Note endorses – one that looks to market effects rather than to the peculiar circumstances of a plaintiff\u27s injury – is hardly novel; indeed, one of its chief virtues is that it draws support from several recent Supreme Court cases. By discussing the interplay between standing and substantive antitrust law, however, this Note supports and extends recent moves toward doctrinal clarity

The Past, Present, and Future of Violent Crime Federalism

The history of the federal involvement in violent crime frequently is told as one of entrepreneurial or opportunistic action by presidential administrations and Congress. The problem with this story, however, is that it treats state and local governments as objects of federal initiatives, not as independent agents. Appreciating that state and local governments courted and benefited from the federal interest is important for understanding the past two decades, but also for understanding the institutional strains created by the absolute priority the feds have given to counterterrorism since September 11, 2001. Intergovernmental relations are at a crossroads. For two decades, the net costs of the federal interaction with state and local governments on crime have been absorbed nationally, with the benefits felt locally. The federal commitment to terrorism prevention and the roles federal authorities envision for state and local agencies portend a very different dynamic, with reduced federal funding for policing and an inherent tension between domestic intelligence collection and street crime enforcement, particularly in urban areas with a high proportion of immigrants

Fifteen Years of Supreme Court Criminal Procedure Work: Three Constitutional Brushes

This essay – written in connection with a French National Research Agency project on “Neo or Retro Constitutionalisms” – is an effort to pull together the last fifteen years of Supreme Court criminal procedure cases expanding constitutional protections. It identifies three different styles: thin and clear doctrinal lines on miniature doctrinal canvases that have only passing connections to criminal justice realities; episodic and self-limiting engagements with a potentially larger regulatory space; and a grand style that hints at sweeping structural ambitions but collaborates with other regulatory authorities. Readers undoubtedly can come up with more than three styles. But, in any event, the exercise highlights the limited nature of the Court’s work during this period, the limits of formalism, and the need for scholars to disaggregate broad references to “constitutionalism