Unregulated Corporate Internal Investigations: Achieving Fairness for Corporate Constituents

This article focuses on the relationship between corporations and their employee constituents in the context of corporate internal investigations, an unregulated multi-million dollar business. The classic approach provided in the 1981 Supreme Court opinion, Upjohn v. United States, is contrasted with the reality of modern-day internal investigations that may exploit individuals to achieve a corporate benefit with the government. Attorney-client privilege becomes an issue as corporate constituents perceive that corporate counsel is representing their interests, when in fact these internal investigators are obtaining information for the corporation to barter with the government. Legal precedent and ethics rules provide little relief to these corporate employees. This Article suggests that courts need to move beyond the Upjohn decision and recognize this new landscape. It advocates for corporate fair dealing and provides a multi-faceted approach to achieve this aim. Ultimately this Article considers how best to level the playing field between corporations and their employees in matters related to the corporate internal investigation

Artificial Entities with Natural Rights: Pursuing Profits at the Expense of Human Capital

This Note explores the legal and constitutional rights granted to corporations and highlights how these corporate benefits are often at the expense of individuals. Over the past century, the corporation has evolved, taking on human-like characteristics. While many statutes and the Constitution use the word “person,” courts have inconsistently interpreted the definition of “person” in determining when it expands to corporations. In courts’ ad hoc analysis and interpretation, individuals get the metaphorical short-end of the stick. The First Amendment of the Constitution was interpreted by the U.S. Supreme Court to afford the right of free speech to corporations in the context of political spending. The Religious Freedom Restoration Act (RFRA) was interpreted as giving religious protections to for-profit, closely held corporations. When asked whether a closely held corporation with a single shareholder is protected under the Fifth Amendment’s right against self-incrimination, the Court answered in the negative, again, leaving the individual vulnerable. Lastly, this Note covers the Supreme Court jurisprudence prohibiting an individual from suing a foreign corporation acting outside of the United States under the Alien Tort Statute. The rights and protections afforded corporations have been determined without much consistency. The only consistency is the result—harm to individuals and stakeholders

The Death of Selective Waiver: How New Federal Rule of Evidence 502 Ends the Nationalization Debate

New Federal Rule of Evidence 502 (“FRE 502”) will end the threedecade push to nationalize a corporate litigation protection known as the “selective waiver doctrine.” First adopted by the Eighth Circuit in 1978, the selective waiver doctrine holds that, when a corporation discloses privileged materials to a government agency during an investigation, the corporation retains its privileges against third-party litigants—i.e., the corporation may selectively waive its attorney-client privilege (and in other circuits its attorney work product protection). This flies in the face of traditional waiver rules, under which a waiver of privilege to one’s adversary generally is a waiver to all adversaries on that subject matter. Based on years of frustration with discovery costs, fear of corporate fraud, and heavy burdens placed on administrative agencies, many legal scholars praised selective waiver as a cure for those ills. Recently, when the Advisory Committee on Evidence Rules met to discuss additions to the FRE, many called for the inclusion of a selective waiver provision. After much debate, the Advisory Committee determined that the selective waiver proposal for FRE 502 was too controversial. In its enacted form, FRE 502 does not contain a selective waiver provision