Federal White Collar Sentencing in the United States: A Work in Progress

At first blush, it seems odd for an American contributor to an international conference on sentencing to focus on high end federal white collar sentencing. After all, federal cases make up a relatively small part of the U.S. criminal justice system. (Between October 2005 and September 2006, about 1,132,290 people were sentenced for a felony in state courts, and 73,009 in federal courts.) Even within the federal system, white collar cases of all sorts are a relatively small part of a criminal docket dominated by immigration, drug, and gun cases, which together comprised nearly 73% of all federal cases in 2009. And the crimes involving fraud, deceit, theft, embezzlement, insider trading, and other forms of deception that accounted for 9.5% of 2009 cases includes a great many offenders and offenses of the middling sort. Moreover, what is meant by high end anyway? Does a vague directional reference allow one to sidestep the longstanding scholarly debate about defining white collar crime

Peer Production in Politics: Democracy vs. Governance

As Andrew Chadwick noted in 2006, ???The issue is no longer whether politics is online, but in what forms and with what consequences???? Governments use the Internet for many reasons, including informing the public, facilitating voting, and communicating with constituents. Similarly, citizens engage with political institutions online in a variety of ways. William Dutton, who terms this engagement of citizenry with government the ???Fifth Estate???, delineates two institutional arenas: the use of ???the Internet and related ICTs to enhance existing democratic institutions and processes???and the networking of individuals to enable the public to hold all institutions of government and politics more accountable???. This poster will contrast websites that use the internet to facilitate representation (e.g., the Sunlight Foundation, Wikileaks) with those that focus on governance (e.g., Community Patent Review, SeeClickFix). These organizations differ in their fundamental objectives: the first type uses the Internet to influence democracy itself while the second engages citizens to do work they have already delegated to government. There are many examples of both types of organizations, both in the United States and abroad. Some use crowdsourcing to create or organize information; others present information to users but do not allow them to contribute. This poster will focus on organizations that operate in the US and use peer production; it will highlight their use of online collaboration, as well as their impact on issues of government transparency, democratic representation, and peer production of knowledge. The mission of the Sunlight Foundation is to ???using the revolutionary power of the Internet to make information about Congress and the federal government more meaningfully accessible to citizens.??? As such, it sponsors online tools that allow the public to watch and contribute to knowledge about government spending, the legislative process, and the influence of lobbyists. One project of the Sunlight Foundation, PublicMarkup.org, allows the public to annotate bills before they are passed by Congress. Several 2008 bills were posted on the site, including the act that authorized the Troubled Assets Relief Program (TARP). The Sunlight Foundation also sponsors projects that do not use peer production, such as MAPLight.org, which allows combines data on campaign contributions and voting records for legislators. Wikileaks.org allows users to upload ???leaks??? -- information about corrupt officials, scandals, and other misbehavior ??? in an anonymous manner. Wikileaks thus crowdsources the whistle-blower role in government (as well as other areas) and also the fact-checking of whistles blown. Wikileaks operates in nearly every country (as it is a wiki, countries can be added very easily), but is represented by Australian Hacker Julian Assange. Situated between journalism and governance, Wikileaks is more difficult to classify, but as an example of whistle-blowing on government corruption, it aims to improve the democratic process. Community Patent Review is a striking example an organization that uses peer production for governance. Community Patent Review is a ???web-based application that allows third parties to comment on patents before they are issued. Large patent holders, including General Electric, Hewlett-Packard, IBM, Intel, Microsoft, Oracle, and Red Hat, have agreed to be part of the pilot, and the patent office has agreed to waive the usual fee for third party comment submissions and give the patents of pilot participants expedited review.??? This provides a public adjunct to the Constitutionally designated function of the Patent Office; this citizen participation does not follow the chain-of-command of the patent office, but instead involves citizens (and non-citizens) in a new way, as users and collaborators. SeeClickFix operates at the local level. SeeClickFix ???allows anyone to report and track non-emergency issues anywhere in the world via the internet. This empowers citizens, community groups, media organizations and governments to take care of and improve their neighborhoods.??? Users post local maintenance issues (e.g., potholes, vandalism), and others can volunteer to fix them. This enhances the role of existing local government functions (e.g., the parks department, the roads department) by again involving the public directly in a non-democratic capacity. Each of these organizations uses a different method to apply peer production to the task of improving democracy or of improving governance. Sometimes these tasks are mixed: MySociety, a UK organization similar to the Sunlight Foundation, creators of FixMyStreet (which inspired SeeClickFix in the US), hosts an e-petition process, which facilitates, instead of street fixing, the development of petitions that are sent directly to the Prime Minister. Organizations can be difficult to classify by these criteria. Creative Commons, founded in 2001, uses open licensing to bypass the more restrictive features of copyright law. Although it is not technically ???crowdsourced???, it does rely on the network effects of its many users who can build on each others??? creations as long as they are all licensed under Creative Commons. In this aspect, it is an example of the second type of organization. Instead of lobbying to change copyright law, it bypasses the structure chosen by democratically elected representatives and instead uses a ???Fifth Estate???, user-governance model. People decide for themselves what kind of copyright they would like to have and share that with others. Similarly, SeeClickFix does not try to recall local parks officials, but instead points out where citizens can do local maintenance themselves; Community Patent Review does not aim to reform the US Patent Office, but instead facilitates public input. The subject of the first group is representation; the subject of the second is a social issue, such as property rights in innovation or local property damage. Both approaches involve transparency, but the second approach involves further transparency as the citizens are full participants in the entire process. For example, what a government does with Wikileaks information or how the annotations on laws are processed is not necessarily transparent. Whether or not a problem ahs been fixed on SeeClickFix is transparent. In other words, the first category still involves representation, which naturally decreases transparency, while the second does not. These two approaches are in some degree of tension: if, in the extreme case, all government functions were handled directly by citizens, there would be no need for representative democracy. On the other hand, if transparency is all that democracy needs, then perhaps the more communitarian approach would not be necessary. In some ways, these two approaches are, to use an economic term, substitutable goods. Both of these approaches are simply the result of applying peer production to public goods, such as well-maintained public spaces, efficient patent issuance, or well-formulated laws. As these organizations grow, they will necessarily blur these lines and create further emergent forms of online democracy and online governance

How Community Institutions Create Economic Advantage: Jewish Diamond Merchants in New York

This paper argues that Jewish merchants have historically dominated the diamond industry because of their ability to reliably implement diamond credit sales. Success in the industry requires enforcing executory agreements that are beyond the reach of public courts, and Jewish diamond merchants enforce such contracts with a reputation mechanism supported by a distinctive set of industry, family, and community institutions. An industry arbitration system publicizes promises that are not kept. Intergenerational legacies induce merchants to deal honestly through their very last transaction, so that their children may inherit valuable livelihoods. And ultra-Orthodox Jews, for whom participation in their communities is paramount, provide important value-added services to the industry without posing the threat of theft and flight

Antitrust and Nonprofit Hospital Mergers: A Return to Basics

Courts reviewing proposed mergers of nonprofit hospitals have too often abandoned the bedrock principles of antitrust law, failing to pay heed to the most elemental hallmarks of socially beneficial competition. This Article suggests that courts’ misapplication of antitrust law in these cases reflects a failure to understand the structural details of the American health care market. After reviewing recent cases in which courts have rejected challenges to proposed mergers between nonprofit hospitals, it documents how courts have engaged in a faulty analysis that ultimately protects nonprofit hospitals from the rigors of standard antitrust scrutiny. It then identifies the core principles of antitrust law—preventing supracompetitive prices, optimizing output, and maximizing allocative efficiency—that have been absent from, if not violated by, the rulings in these merger cases

The King of Rockingham County and the Original Bridge to Nowhere

This chapter, reveals the story -- the clash of personalities, the economic tensions, and the political significance -- behind Rockingham County v. Luten Bridge Co. Since its publication in 1929, the opinion has proceeded to leave an impression on generations of law students. Luten Bridge, a staple in most contracts casebooks, is known today as the paradigmatic case that demonstrates the duty to mitigate damages in contract law, whereby a nonbreaching party is not compensated for performance that occurs after the other party announces an intention to breach. This chapter takes on three objectives: it identifies the case\u27s original importance, uncovers the opinion\u27s political and jurisprudential significance, and tells a remarkable story, one that arose within a heated tax revolt pitting the county\u27s farmers against its most celebrated industrialist. Much more than a crisp illustration of the duty to mitigate, Rockingham County v. The Luten Bridge Co. offers a window into a southern community\u27s struggles with a divided social order, the introduction of wealth into local politics, and a changing economy

Ethnic Networks, Extralegal Certainty, and Globalisation: Peering Into the Diamond Industry

For nearly one millenium, the diamond industry\u27s distribution system remained largely unchanged. Ethnic networks, predominated by Jewish merchants, managed the downstream distribution system. Since state courts are unable to reliably enforce executory contracts for diamond sales, these networks succeeded because their community institutions were able to assert extralegal governance. But recent trends in the globalisation of commerce have introduced pressures that might cause the one thousand year-old system to unravel. Low-wage workers from India have displaced higher wage western merchants, consumer demands for political oversight has brought scrutiny to previously secretive networks, and the profitability of global branding campaigns has enabled DeBeers to implement a vertically integrated business strategy that skips the middleman and sells directly to consumers. Since these pressures represent the paradigmatic forces of globalisation, examining changes in the diamond industry offers insights both into the future of ethnic exchange and into globlisation itself