White Collar Crime from Scratch: Some Observations on the East European Experience

This Essay recounts the Author’s experiences with an American Bar Association program called the Central and East European Law Initiative (CEELI). The Author traveled in Eastern Europe and focused on white collar crime issues in Poland. The Author was exposed to Eastern Europe\u27s conversion to democracy and a market economy and the role of white collar crime in this conversion. Poland is drafting white collar crime statutes from scratch. There is also the opportunity that Poland’s effort can help us examine our attitudes toward white collar crime

Victim Participation in Plea Bargains

This Article examines whether victims should be accorded aright to participate in a specific stage of the prosecution, the plea bargain. The Article begins by analyzing the costs and benefits of victim participation in plea bargains. It then examines the different types of plea bargains, and identifies the persons whose participation is necessary to a plea bargain. For this purpose, the Article explores in detail the role of the parties and the court in plea bargains and the extent of the trial court\u27s discretion to reject a plea bargain proposed by the parties. This Article then analyzes recent changes in the law which grant victims some rights in plea bargains. The Article concludes that within certain limits, victims should be accorded a right to participate in plea bargains. This right of participation should be implemented by granting to victims an opportunity to express their views on the proposed plea bargain to the trial judge at the plea bargain hearing before the trial judge decides whether to accept the plea bargain. If the victim is denied this right, the victim would have no cause of action but could report the judge to the appropriate judicial review commission. This Article concludes that this right to be heard by the trial judge is sufficient to protect the various interests implicated. The victim\u27s right to participate, therefore, should be limited, and the victim should not be granted any right to appeal if he or she objects to the trial judge\u27s decision

The Uniform Disposition of Community Property Rights at Death Act

In 1977, eight of the United States use community property systems instead of the common law systems used in the other 42 states. Because the community property system is totally alien to common law states which do not recognize community interests in property, when domiciliaries of a community property state migrate to a common law state problems develop over the definition of property rights. Two questions usually arise: do the spouses’ rights and interests in the community property change if they move to a common law state? And if not, how are these rights and interests protected? The first question clearly has been answered in the negative. The answer to the second question is in doubt, however, because the common law states have developed no consistent pattern for dealing with the disposition of estates which include both the separate property of each spouse and community property or property traceable to community property. To remedy this confusion, the National Conference of Commissioners on Uniform State Laws approved and recommended for enactment the Uniform Disposition of Community Property Rights at Death Act in 1971. Kentucky adopted this uniform act in 1974. It provides a clear, statutory method for dealing with the disposition of estates in Kentucky which consist of both separate property and property acquired as community property under the laws of another state

Intracorporate Plurality in Criminal Conspiracy Law

The concept of conspiracy currently plays a significant role in three areas of substantive law: antitrust, civil rights, and criminal law. Although the role of conspiracy in these substantive areas of law differs in many ways, all three require that the conspiracy consist of a plurality of actors. Determining what constitutes a plurality of actors when all the alleged conspirators are agents of a single corporation poses a continuing problem. This problem raises two distinct questions. The first is whether, when one agent acts alone within the scope of corporate business, the agent and the corporation constitute a plurality. The second question is whether, when several agents of a single corporation act together in furtherance of the corporation\u27s business, a plurality is established or there is just one actor, the corporation, operating through multiple agents. These questions have plagued antitrust law for some time, and more recently have arisen in civil rights law. The issue of what constitutes the requisite plurality also has arisen under general criminal conspiracy laws. The law in this area is uncertain. Courts have had trouble framing the issues correctly and have relied on inappropriate precedents in making their decisions. At times, courts also have avoided confronting the issue directly, or simply have failed to analyze the question carefully. The result has been confusion regarding what constitutes a plurality in an intracorporate situation for the purpose of criminal conspiracy laws. This Article examines the law on the plurality required for conspiracy under the criminal law in the two intracorporate fact patterns outlined above, and examines the differences between the plurality required for civil rights and antitrust conspiracies on the one hand and criminal conspiracies on the other. The Article begins with a brief history of conspiracy and an introduction to its roles in various areas of law. The plurality component of conspiracy is then examined in detail in two areas, antitrust and civil rights, to determine how plurality is defined in those areas and the rationale behind the definition. After a brief discussion of corporate criminal liability and criminal conspiracy generally, the plurality requirement for criminal conspiracy is examined in detail. The Article concludes by proposing an analysis for the definition of corporate criminal conspiracy based on the substantive goals of criminal conspiracy law. Under this analysis, the plurality requirement is not met when a corporation and only a single agent are involved. When two or more agents of a corporation conspire, however, liability is not precluded. In this second situation, the question is whether agents of the same corporation can constitute a plurality. If they can, the liability of the corporation for the actions of its agents should be determined under the usual standards of corporate criminal liability. The question whether multiple agents of a single corporation can constitute a plurality has been answered differently by the courts in different contexts. In antitrust and civil rights cases, courts have generally held that multiple agents are not a plurality. This Article concludes that such decisions reflect policy considerations unique to these areas of law, and that their reasoning is not apposite to criminal conspiracy. In the general criminal conspiracy context, the best approach is to analyze plurality with reference to the underlying purposes of criminal conspiracy law. The Article concludes that a rule that finds the requisite plurality in multiple agents of a single corporation will best further those purposes

Money Laundering: The Anti-Structuring Laws

Several money laundering laws do not apply until the amount of money involved exceeds $10,000. The laws include three reporting requirements and one substantive crime. Launderers have responded to these laws in part by structuring their transactions--breaking them up so the amound involved in each transaction is less than$10,000. This Article collects and analyzes the laws that make structuring a crime. I have discussed one such law, the cash transaction report (CTR) anti-structuring statute, in a previous article. This Article analyzes the anti-structuring provisions of the three other money laundering laws that use numerical thresholds. It also examines how the CTR anti-structuring statute is developing, both for its own sake and because it anticipates issues for the other anti-structuring laws

Discovery of Nonparties\u27 Tangible Things under the Federal Rules of Civil Procedure

Federal Rules of Civil Procedure 26 through 37 describe procedures for pretrial discovery. While one may employ all the methods of discovery against parties, discovery methods for nonparties are much more limited. For example, with the exception of the independent action under subdivision (c), the procedures detailed in Federal Rule 34 regarding production of tangible things do not apply to nonparties. Frequently, though, a litigant must discover tangible things in the possession, custody, or control of a nonparty. Although the federal rules do provide alternative methods for the discovery of nonparties\u27 things, the whole discovery scheme for nonparties is rather clumsy. First, in terms of the procedure for production, the rules have the effect of distinguishing mobile from immobile property. If the property is mobile, a subpoena duces tecum under Rule 45(d) is the only available discovery method. If the property is immobile, it is discoverable only by independent action pursuant to Rule 34(c). This inadvertent distinction in procedure serves no policy. Moreover, each of the individual methods has drawbacks. The subpoena duces tecum is dependent upon a deposition, which is unnecessary and wasteful. The independent action is an obscure, historical discovery device which presents problems of jurisdiction and practical utility, and contravenes policies of the federal rules. This article examines the federal approach to discovery of nonparties\u27 tangible things; beginning with an examination of procedures for the production of mobile things. After concluding that the subpoena duces tecum is the only available method, the article discusses the central weakness of the subpoena duces tecum: its dependence on a deposition. Comparable state practice is then explored and state alternatives to the subpoena duces tecum are analyzed. This article further examines the federal rules\u27 approach to inspection of immobile things. After a brief history of Rule 34 (c), independent actions and their weaknesses are considered. Again, comparable state practice is examined for possible alternatives to the independent action. Ultimately, this article suggests that amendment of either Rule 34 or Rule 45 would eliminate the weaknesses in the federal rules\u27 approach to discovery of nonparties\u27 things, and that amendment of Rule 34 is the marginally preferable solution