Cyber-threats and the Limits of Bureaucratic Control

For over half a decade, the author has been writing about how and why the institutions modern nation-states rely on to fend off the threats––war, crime, and terrorism––that can erode their ability to maintain order and compromise their viability as sovereign entities become ineffective when the threats migrate into cyberspace. In a succession of law review articles and books, the author refined her analysis of the essentially unprecedented challenges cybercrime, cyberterrorism and cyberwarfare pose for law enforcement and the military. The goal of this article is to go beyond critiquing the efficacy of the current threat-control structures and outline an alternative approach. The current approach, which appropriately focuses on remediating specific factors that contribute to the inefficacy with which current United States threat-control structures confront cyber-threats, is inadequate because it seeks to “update” systems that were developed to control threats that were simpler and more parochial than the ones we confront now. The author does not believe existing threat-control structures can be modified in ways that will make them effective against the twenty-first century threats many countries already confront, and most, if not all, will eventually confront. Like others, the author believes we need a new threat-control strategy: one that replaces the rigid, hierarchical structures on which we currently rely, with systems that mirror the lateral, networked structures that prosper in cyberspace. This article outlines how such a strategy could be structured and implemented

Of Complicity and Enterprise Criminality: Applying Pinkerton Liability to RICO Actions

The Pinkerton doctrine is a judicially-created rule that makes each member of a conspiracy liable for crimes that other members commit to further their joint criminal design. This Article analyzes the rationale for co-conspirator liability and considers whether it can be enforced under the federal Racketeer Influenced and Corrupt Organizations statute, known as RICO. Section II(A)outlines the law of complicity, a related doctrine that imposes liability for crimes committed by another under circumstances different from those involved in Pinkerton. Section II(B) traces the origins of the Pinkerton rule and analyzes the premises of Pinkerton liability. The analysis reveals that the Pinkerton doctrine shares an empirical rationale with complicity, so that they are distinct varieties of a single phenomenon which is denominated as affiliative liability. Section II(C) summarizes RICO law and practice, and Section III considers whether Pinkerton liability should apply in RICO cases