Investigating the Integration of Acquired Firms in High-technology Industries: Implications for Industrial Policy

Acquisition activity persists despite evidence that acquisitions do not improve firm performance. Further, government policy toward the defense industry has advocated consolidation in the name of nominal cost savings. We explore the role acquisitions play toward technology transfer and begin to identify factors associated with acquisition success through a review of existing research on post-acquisition performance that primarily considers acquiring firm stock performance. Using this research as a foundation, we build a model to analyze post-acquisition performance using a sample of high-technology firms. Results suggest critical success factors associated with post-acquistion stock performance are poorly understood. We conclude that proactive government policy toward high-technology industry mergers and acquisitions may be misguided due to difficulty in predicting acquisition outcome

An Initial Look at Technology and Institutions on Defense Industry Consolidation

Conventional wisdom holds that defense industry consolidation resulted from decreased defense spending. However, we maintain that understanding dynamic changes in key defense institutions helps provide a more complete explanation for observed consolidation. Specifically, we examine the interaction of evolving technology and changing institutions. Institutions reviewed include procurement policies, weapons requirements process and the procurement organizations. We take an initial look at the industry and highlight how these changes influenced transaction costs in the defense industry more fully explain the forces driving consolidation and provide greater insight to policy makers seeking to improve the performance of the defense industry. Further research is needed to build a robust institutional framework of the defense industry and the related government agencies to allow better policy prescriptions

Privatizing Criminal Procedure

As the staggering costs of the criminal justice system continue to rise, states have begun to look for nontraditional ways to pay for criminal prosecutions and to shift these costs onto criminal defendants. Many states now impose a surcharge on defendants who exercise their constitutional rights to counsel, confrontation, and trial by jury. As these “user fees” proliferate, they have the potential to fundamentally change the nature of criminal prosecutions and the way we think of constitutional rights. The shift from government funding of criminal litigation to user funding constitutes a privatization of criminal procedure. This intrusion of market ideology into the world of fundamental constitutional rights has at least two broad problems: it exacerbates structural unfairness in a system that already disadvantages poor people, and it degrades our conception of those rights. This Article proposes solutions to ameliorate the harshest effects of these rights-based user fees but also argues for the importance of resisting the trend of the privatization of constitutional trial rights

Gamesmanship and Criminal Process

We first learn formal structures of rules, procedures, and norms of conduct through games and sports. These lessons illuminate and inform human behavior in other contexts, including the adversarial world of criminal litigation. As critiques of the legitimacy and fairness of the criminal justice system increase, the philosophy and jurisprudence of sport offer a comparative legal system to examine criminal litigation. Allegations of gamesmanship—the aggressive and strategic use of rules that violate some sense of decorum or culture yet remain within the formal rules of engagement—cut across both contexts. This Article examines what sports can teach us about gamesmanship in criminal litigation. After distinguishing gamesmanship from cheating, this Article compares several examples of gamesmanship in sport and criminal litigation. These examples address the Crawford right of confrontation, the Brady obligation to disclose favorable evidence to the defendant, and the Batson prohibition against using race in jury selection. This Article uses the jurisprudence of sport to propose a framework within which to view these claims in the criminal justice context. Recognizing the asymmetrical nature of the adversarial criminal justice system and the dual role of prosecutors as advocates and ministers of justice, this Article argues that prosecutorial gamesmanship poses a different and more acute danger to the legitimacy of the criminal adjudication system than does such behavior by defense lawyers. This Article concludes that gamesmanship is not only an inevitable part of any rule-based adversarial contest but also a positive and productive phenomenon that forces those invested in a system to define which values and objectives are fundamental to that system. Only when an instance of gamesmanship is inconsistent with these broader values or objectives should it be regulated or eliminated

The Meaning of a Misdemeanor in a Post-Ferguson World: Evaluating the Reliability of Prior Conviction Evidence

Despite evidence that America’s low-level courts are overburdened, unreliable, and structurally biased, sentencing judges continue to uncritically consider a defendant’s criminal history in fashioning an appropriate punishment. Misdemeanor courts lack many of the procedural safeguards that are thought to ensure accuracy and reliability. As with other stages of the criminal justice system, people of color and poor people are disproportionately burdened with the inaccuracies of the misdemeanor system. This Article examines instances in which sentencing courts have looked behind the mere fact of a prior conviction and assessed whether that prior conviction offered any meaningful insight for the subsequent sentence. This Article then proposes a framework by which defendants should be allowed to challenge the use of prior conviction evidence in the sentencing context, arguing that the government should bear the burden of persuasion once the defendant sufficiently satisfies a burden of production. Ultimately, however, this Article suggests that courts and legislatures consider categorical exemptions from the use of prior misdemeanor convictions in imposing sentences. Failure to critically examine this evidence risks introducing and compounding the biases and errors of low-level courts into more serious sentencing proceedings

Beyond “Life and Liberty”: The Evolving Right to Counsel

The majority of Americans, if they have contact with the criminal justice system at all, will experience it through misdemeanor courtrooms. More than ever before, the criminal justice system is used to sort, justify, and reify a separate underclass. And as the system of misdemeanor adjudication continues to be flooded with new cases, the value that is exalted over all others is efficiency. The result is a system that can make it virtually painless to plead guilty (which has always been true for low-level offenses), but that is now overlaid with a new system of increasingly harsh collateral consequences. The hidden consequences of a conviction may never be explained to the person choosing to plead guilty, leading to unjust results that happen more regularly and with more severe consequences than ever before. This Article argues that current Sixth Amendment jurisprudence on the right to counsel has not adequately adapted to the changed realities within which misdemeanor prosecutions take place today. Because of the dramatic changes in the cultural meaning and real-life consequences of low-level convictions, there is no longer a useful or constitutionally significant line between those cases resulting in actual imprisonment and those cases not resulting in imprisonment. Three years ago in Padilla v. Kentucky, the Supreme Court recognized that the line between the direct and collateral consequences of a conviction has no constitutional significance in defining the effective assistance of counsel. Recognizing that the Sixth Amendment right to counsel has evolved throughout its history to accommodate the changing cultural context of criminal prosecutions, this Article calls for a robust expansion of the right to counsel in all criminal cases

Candor, Zeal, and the Substitution of Judgment: Ethics and the Mentally Ill Criminal Defendant

This Article explores the tension between autonomy and paternalism that characterizes the attorney-client relationship when a criminal defense attorney represents a mentally impaired client. Specifically, the Article analyzes the ethical frameworks that constrain the discretion of the attorney in this situation and proposes a new paradigm for ethical decisionmaking when an attorney represents a marginally competent client. The criminal defense attorney is both a zealous advocate for her client and an officer of the legal system. In representing a marginally competent client, the initial ethical dilemma facing the attorney is whether she has an obligation to alert the court to any doubts she has regarding her client\u27s competency to proceed. Although the majority position is that the attorney\u27s role as officer of the court obligates her to raise any such doubts, this Article argues that such an obligation is inconsistent with the defense attorney\u27s unique historical role as partisan in the criminal justice system. Traditionally, arguments for requiring defense attorneys to raise such doubts are grounded in concepts of the dignity of the criminal defendant and the moral integrity of the system. The Article argues that both values are better served by a more nuanced and flexible understanding of the defense attorney\u27s ethical obligations in this situation.More broadly, the defense attorney representing a mentally impaired client must determine whether, how, and to what extent she may substitute her own judgment for that of her client. A client-centered model of lawyering positions the attorney not as decisionmaker but as facilitator; this model can break down, however, in cases involving mentally impaired clients. When the client is unable meaningfully to function as a decisionmaker, but has been determined to be competent to stand trial, the attorney must look elsewhere for guidance. As with the threshold issue of whether the attorney should be required to raise doubts of competency, the Article argues that the defense attorney must be endowed with significant discretion in determining when and how to employ a model of surrogate decisionmaking. Finally, the Article proposes an ethical paradigm within which the attorney can engage in surrogate decisionmaking, one that allows the attorney appropriate latitude while also guiding the discretion of the attorney.Ultimately, the Article argues that the values of autonomy and the moral integrity of the system are best served by allowing and empowering the defense attorney to fulfill her historical and unique role as zealous advocate, rather than by requiring her to function as an arm of the court. By subordinating the attorney\u27s obligation as an officer of the legal system to her role as zealous advocate, the proposal advances the principles of dignity and due process that are at the heart of the criminal justice system