Condemnation Without Basis: An Expressive Failure of Corporate Prosecutions

Gregory M. Gilchrist

Volume 64, Issue 4, 1121-1170

This is the second of two Articles on the expressive aspects of corporate criminal liability. The first Article argued that to justify imposing criminal liability on corporations we must refer to the expressive function of criminal liability. This Article considers the expressive function of actual corporate prosecutions and identifies aspects of corporate prosecutions that generate expressive costs rather than benefits. These are the expressive failures of corporate prosecutions. This Article identifies a number of these failures and introduces a model of perceived legitimacy and the expressive function of punishment that explains how expressive failures harm the legal system. Mere respondeat superior liability—holding corporations criminally liable where there is no basis to condemn the corporation qua corporation—is the most significant expressive failure. It is also the easiest to fix: Allow corporations a good-faith defense against criminal liability. Good faith defenses have been proposed before, but this is the first proposal based on the expressive impact of the defense. A good faith defense will limit the application of corporate criminal liability to those instances where there is a basis to condemn the corporation as a whole, thus realigning the expression inherent in criminal punishment with commonly held views about blaming corporations.

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Resistance Is Not Futile:Harnessing the Power of Counter-Offensive Tactics in Legal Persuasion

Peter Reilly

Volume 64, Issue 4, 1171-1229

A core competency for people working in law or business is the ability to influence and persuade: People need to become expert at getting others to agree, to go along, and to give in. The potential “targets” of one’s influence throughout a given workday are seemingly endless and include clients and customers, co-counsel, opposing counsel, supervisors, direct reports, contractors, subcontractors, consultants, secretaries, judges, juries, witnesses, police officers, court personnel, and others. Moreover, that influence is largely exerted through words spoken and behaviors exhibited within the context of a negotiation. And yet, leading academics have argued that the vast majority of academic writing on negotiation has ignored the element of interpersonal influence. This Article was written to help correct this glaring omission.This Article underscores the notion that throughout each day, people move rapidly and fluently between the roles of persuasion “agent” (that is, one who attempts to persuade others) and persuasion “target” (that is, one whom others attempt to persuade). If an “agent” party is attempting to persuade, the receiving or “target” party must understand the various tactics, strategies, and techniques being employed in those attempts, as well as ways to resist and defend against them. This Article provides this knowledge and understanding so that all parties, whether agents or targets, can be more effective negotiators. Those who are not aware that these techniques exist and who cannot recognize them and resist them place themselves (and their clients) at a clear disadvantage with respect to negotiation outcomes and final settlement results. It is only by recognizing and responding to various strategies and techniques of influence and persuasion that negotiators can begin to resist their powers and nullify their impacts.

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A Long View of the Supreme Court’s Influence over Supreme Court Appointments

Christine Kexel Chabot

Volume 64, Issue 4, 1229-1272

This Article offers the first empirical analysis of the Senate’s role in constraining presidents’ choices of Supreme Court nominees over an extended historical period. It considers ideologies of Senates faced by nominating presidents and measures whether the ideologies of these Senates predict Justices’ voting behavior. The analysis substantially qualifies earlier understandings of senatorial constraint.Earlier empirical studies consider only limited numbers of recent nominees. They suggest that the Senate has constrained presidents’ choices, and many scholars theorize that the Senate has enhanced its role in the appointments process since the 1950s. Analysis of a larger group of nominees shows that the Senate’s ideology has had significant predictive power over Justices’ votes in only two isolated historical periods. Senatorial ideology was last significant in the 1970s, shortly after the filibuster of Abe Fortas’s nomination to be Chief Justice, but then it lost significance following rejection of Robert Bork’s nomination in 1987.

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Uncommon Approaches to Commons Problems: Nested Governance and Climate Change

Blake Hudson and Jonathan Rosenbloom

Volume 64, Issue 4, 1273-1342

The national debate over marriage discrimination against gay and lesbian Americans is playing out in state legislatures, at the ballot, and in the federal courts under the conventional notion that liberal rhetoric, the liberal political philosophy indebted to John Rawls, and the unencumbered self at their cores are the bases for the most effective arguments for the gay rights movement. Pro-gay groups talk often about rights, liberty, and the freedom to choose whom to love. Even in court, gay rights groups repeat the Supreme Court’s statements about a fundamental right to make the choice to marry. But the conventional wisdom ignores the important social role marriage plays in society and the way in which the cultural and sociological value of marriage and gay relationships can help jump the constitutional hurdles facing those seeking the freedom to marry.

This is the first in a series of three Articles investigating the underappreciated role that the social theory of Emile Durkheim plays in the quest for the freedom to marry for gay Americans. To that end, this Article begins the discussion by examining the Durkheimian legal arguments that go unnoticed in equal protection and due process claims against marriage discrimination. This Article challenges two assumptions: first, that the most effective legal argument for marriage rights is a purely liberal one, and second, that the substance and rhetoric of liberal toleration cannot exist symbiotically in the marriage discrimination debate with a more robust politics based on the experiential social value of marriage and gay relationships. The freedom to marry is both a liberal right and a piece of the good life. Drawing on Durkheim, this Article discusses a sociological theory of marriage and argues that the constitutional case for the freedom to marry is not just about the rights of equal protection and due process, but also about the sociology of marriage. In other words, a successful constitutional argument depends on the recognition that marriage is a social good with both general and everyday demonstrable benefits for the married couple and society as a whole.

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Note – The Fate of BitTorrent John Does: A Civil Procedure Analysis of Copyright Litigation

Patience Ren

Volume 64, Issue 4, 1343-1380

Copyright owners can trace online violations to an infringer’s Internet protocol address but cannot identify her unless they obtain court approval to serve a subpoena on an Internet service provider. As the most popular peer-to-peer file-sharing protocol today, BitTorrent requires users to share files with each other in a conspiracy-like fashion. By arguing that this feature imparts a “same transaction” character to BitTorrent infringement activities, a copyright owner can seek to join multitudes of Internet protocol addresses as John Doe defendants in an application for early discovery. Courts are divided as to whether early discovery should be granted where tens, hundreds, or sometimes thousands of Internet protocol addresses are joined together in one case. Many in the Internet user community fault copyright owners for using the courts as a mere instrument to seek identification information en masse as part of a coercive practice to induce monetary settlements. This Note examines how case law relating to early discovery and civil procedure joinder rules applies to multiple defendants allegedly participating in a “same transaction” that occurs solely within the inner workings of a file-sharing protocol. Even if BitTorrent usage legally supports joinder, this Note highlights the difficult balance between the right to enforce a copyright and the rights of Internet users to be free from litigation threats. Without a legislative response that is resilient in the face of an ever-changing technology, copyright infringement problems will continue to inundate our courts.

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Note – Thank You, Servicemember! But Your Process Is in Another Forum: The Misuse of Civil Jurisprudence to Inform UCMJ Rights

Justin Biolo

Volume 64, Issue 4, 1381-1402

Congress codified many of the disciplinary procedural rights for servicemembers in the Uniform Code of Military Justice (“UCMJ”). Several of these explicit, statutory protections were later developed as judicial doctrines for civilians, such as Miranda’s right against self-incrimination and Kastigar’s right to testimonial immunity. In response the military’s highest court, the U.S. Court of Appeals for the Armed Forces, adopted the U.S. Supreme Court’s jurisprudence to inform a servicemember’s statutory rights under the UCMJ. But in doing so, military justice did not recognize that civilian rights are typically only invoked in trials while military discipline is affected through a gamut of proceedings separate and distinct from a court-martial. This Note reviews the incorporation of Miranda and Kastigar to reveal how appropriating civilian common law, which was intended for the courtroom, may inadvertently decrease a servicemember’s procedural protection in other fora.

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