Vicarious Criminal Liability

February 24, 2010

The criminal law is a powerful tool with which federal prosecutors attempt to secure a robust and healthy marketplace.  The efficacy and appropriateness of using criminal law to regulate corporations, however, has been subject to renewed scrutiny on theoretical and pragmatic grounds, including Professor John Hasnas’s question of whether a corporation can ever meet the three conditions for criminal punishment: (1) “its sanction should be applied only where doing so advances the purpose of punishment,” (2) there must exist a requirement “that criminal provisions be crafted to place objective limitations on prosecutorial discretion,” and (3) recognition that criminal sanctions can “be applied only where they are necessary to address a public harm.”  However, the legality of imposing criminal liability on corporations has been long settled in practice, and recently reaffirmed, in the courts.  Therefore, any change in the status quo must be the result of effective legislative change.  This article will briefly discuss the evolution of vicarious criminal liability for corporations, the current problem, and suggest a possible policy or legislative solution.

Discussion of Constitutional and Statutory Limits on the FCC's Authority to Promulgate Internet Traffic Rules

February 12, 2010

There is an important discussion about the FCC's proposal to regulate broadband internet access. We present a number of pieces and links discussing this important issue.

ABA Watch February 2010

February 5, 2010

In this issue, we are pleased to offer an interview conducted over email with ABA President-Elect Stephen Zack, who will become president of the Association next summer.  We are publishing his responses unedited in this issue.  This issue also features a piece discussing the ABA’s policy regarding the Obama Administration’s decision to prosecute the five Guantanamo detainees accused of conspiring to commit the 9/11 terrorist attacks in New York.  And, as in the past, we digest and summarize actions before the House of Delegates. [More]

"Complaints" About the Weather: Why the Fifth Circuit's Panel Decision in Comer v. Murphy Oil Represents the Wrong Approach to the Challenge of Climate Change

January 29, 2010

Common law “nuisance” litigation has emerged as the strategy of choice for climate change activists and plaintiffs’ lawyers seeking to limit in a piecemeal fashion U.S. greenhouse gas (“GHG”) emissions.  The recent decision by a panel of the United States Court of Appeals for the Fifth Circuit in Comer v. Murphy Oil U.S.A., 585 F.3d 855 (5th Cir. 2009), takes this trend to a new level.  For the first time, and what some maintain is contrary to established precedent, a United States Court of Appeals has allowed private parties to bring common law nuisance claims in federal court on the theory that particular GHG emissions from defendants’ sources injured plaintiffs and their property by exacerbating specific weather events.

Class Action Watch December 2009

December 7, 2009

In this issue, experts in the field consider a proposed amendment to the Medicare Secondary Payer Statute, Dukes v. Wal-Mart and plaintiffs' use of statistical proof in class certification proceedings, the Ninth Circuit's ruling that Hawaii's Deceptive Practices Act does not require proof of causation in class actions seeking damages, and the Supreme Court's upcoming decision regarding the multiplication of attorneys' fees in Kenny A. v. Perdue. [Read now!]

Engage Volume 10, Issue 3, November 2009

November 11, 2009

The November 2009 issue of Engage is now online (exclusively a digital issue). Engage provides original scholarship on current, important legal and policy issues. Through its publication, we aim to contribute to the marketplace of ideas in a way that is collegial, measured, and insightful—and hope to spark a higher level of debate and discussion than is all too often found in today’s legal community. [Read now!]

State Court Docket Watch Fall 2009

November 10, 2009

In an effort to increase dialogue about state court jurisprudence, the Federalist Society presents State Court Docket Watch. This newsletter is one component of the State Courts Project, presenting original research on state court jurisprudence and illustrating new trends and ground-breaking decisions in the state courts. This issue features articles on the state courts of New Hampshire, Missouri, North Carolina, Washington, Alabama, Michigan, Georgia, and New York.

Judicial Funding Mandates Related to Education Sharply Decline

October 27, 2009

Twenty years ago a new kind of educational lawsuit designed to ensure “adequacy of funding” began to sweep through the state courts.  Over the past five years these suits have been almost uniformly rejected, but for the first fifteen years courts in almost one-third of the states found funding to be unconstitutionally low and demanded that state legislatures substantially increase K-12 education appropriations.   While the reasons for plaintiffs’ recent series of losses in the courts are varied, they almost certainly reflect the fact that court ordered funding has not been an effective means of improving student outcomes. This white paper by Eric Hanushek and Alfred Lindseth highlights the dismal track record of the courts in bringing about effective education reform. Their book, Schoolhouses, Courthouses, and Statehouses: Solving the Funding-Achievement Puzzle in America’s Public Schools, traces the history of these lawsuits and provides strong evidence that, despite billions of dollars of court-ordered funding, student achievement has continued to languish in three of the four states which have had the most significant and longest running “adequacy” remedies - New Jersey, Wyoming and Kentucky.  Only in Massachusetts, where increased funding was accompanied by more fundamental reforms was there evidence of improvement.   This evidence was cited recently by the U.S. Supreme Court in Horne v. Flores when it found in a case involving the education of English language learners that judicial funding mandates have been relatively ineffective in improving educational outcomes.  State courts have already become noticeably less receptive to judicial funding mandates, and the Supreme Court’s decision will make them even more difficult to justify.

Key Issues for Pennsylvanians: What is at Stake with the Pennsylvania Supreme Court

October 6, 2009

Pennsylvanians will soon elect a new justice to serve a ten-year term on the Pennsylvania Supreme Court, a court that  regularly decides crucial matters affecting the daily lives of those who live, work, and do business in Pennsylvania.  By way of example, Key Issues for Pennsylvanians: What is at Stake with the Pennsylvania Supreme Court highlights several areas of the Pennsylvania Supreme Court’s decision-making.  The influence of this court, or indeed any state court, on issues relating to gun control, marriage, and medical malpractice makes the election for Pennsylvania’s next supreme court justice especially critical.

Treasury’s Proposed Resolution Authority for Systemically Significant Financial Companies

September 24, 2009

The reorganization or liquidation of most types of companies is governed in the United States by a single federal law—the US Bankruptcy Code (the “Bankruptcy Code”). As a result, no matter the complexity, the type of company or the industry, the same well-defined set of avoidance powers, priorities and distribution schemes apply.

In contrast, there is no single, uniform federal law governing the restructuring or liquidation of diversified US financial groups. The restructuring or liquidation of such groups can therefore be quite complex and potentially chaotic. The parent holding company and most non-financial subsidiaries are subject to the Bankruptcy Code. FDIC-insured bank or thrift subsidiaries are subject to a specialized regime contained in the Federal Deposit Insurance Act (the “FDIA”) and administered by the Federal Deposit Insurance Corporation (the “FDIC”).

The Economic Impact of Waxman-Markey on the Home Building Industry

September 17, 2009

On June 26, 2009 the U.S. House of Representatives passed the American Clean Energy and Security Act (ACESA) by a narrow vote of 219-212. The House passed the over 1,200 page piece of legislation which contains provisions intended to lower Greenhouse Gas (GHG) emissions from large segments of the United States economy. It also sets benchmarks for increased efficiency in buildings and consumer products, and mandates that certain percentages of power generation come from non-fossil fuel and renewable sources. Possibly the most famous part of the ACESA legislation is its cap and trade system for GHG emissions.

Dollars and Sense: Understanding the New Jersey Supreme Court’s Role in Education and Housing

September 1, 2009

Some have faulted high taxes and fees and excessive regulation for making it burdensome for businesses in New Jersey to grow and create new jobs.  While these are no doubt important factors, some say another may rest with various decisions of the New Jersey Supreme Court affecting housing and education in the state. The purpose of this white paper is to review these decisions and consider whether they have raised costs for individuals and businesses in New Jersey as some have argued.  Some will say these decisions are consistent with the state’s constitution and, therefore, are the cost of enforcing the law.  Others will disagree and view the costs as a byproduct of judicial overreaching.  Whatever the case, one thing is certain—courts play an enormous role in our lives and more debate about their role and greater transparency respecting judicial selection ought to be most welcome.