The NYTimes has a book review of a new book by Mitchell Zuckoff, called "Ponzi’s Scheme."  The review by David Margolick  is titled, "His Last Name is Scheme" and it sounds like the book is an indepth history of Charles Ponzi.

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The Buffalo Criminal Law Review has a new issue devoted to white collar crime scholarship. To start the discussion of this new scholarship it seems most appropriate to note the piece by my co-blogger, Peter Henning. Peter’s piece on the Sarbanes-Oxley Act is titled, "Sarbanes Oxley Act Section 307 and Corporate Counsel: Who Better to Prevent Corporate Crime?" The article’s cite is 8 Buffalo Crim. L. Rev. 101 (2004) and you can download the article from SSRN at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=642561

The abstract of the article is also available at that site, but to give a highlight…..

"The flaw in the SEC’s proposed rule was that it coupled "noisy" with "withdrawal." Lawyers are not "gatekeepers" in the same way accountants have a duty to the investing public to ensure that a company conveys accurate information. . . .The Article argues that the SEC should adopt the withdrawal portion of the noisy withdrawal rule, and that withdrawal should be mandatory for both outside counsel and in-house lawyers when they become aware of corporate misconduct and the corporation refuses to take adequate remedial measures. . . ."

The rest of the articles in Vol. 8, No. 1, are as follows:

Sara Sun Beale & Adam G. Safwat, What Developments in Western Europe Tell Us about American Critiques of Corporate Criminal Liability
Katheen F. Brickey, Enron’s Legacy
Pamela H. Bucy, "Carrots and Sticks": Post-Enron Regulatory Initiatives
Stuart P. Green, The Concept of White Collar Crime in Law and Legal Theory
Roland Hefendehl, Enron, WorldCom, and the Consequences: Business Criminal Law Between Doctrinal Requirements and the Hopes of Crime Policy
Geraldine Szott Moohr, Prosecutorial Power in an Adversarial System: Lessons from Current White Collar Cases and the Inquisitorial Model
Bernd Schünemann, The Sarbanes-Oxley Act of 2002: A German Perspective

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White Collar Crime is not unique to the United States.  A new paper is listed on SSRN, although the abstract is all that now appears.  The paper by Amarjeet Sinth, discusses white collar crime in the context of Singapore.  The abstract states that the piece examines "the lack of comprehensive statistical data and the dearth of documented material on such crimes." 

This same problem is true to the United States. Although much has been written about white collar crime in the United States, the reporting systems do not categorize crime this way and the amorphous definition of the word can present problems in deciding what is included and what is not.  Perhaps this is a universal problem.

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The Association of American Law Schools will be hosting a Workshop on Legal Ethics in a New Millennium: New Practice, New Rules, New Visions, on June 12-14 in Montreal in conjunction with mid-year meeting (workshop announcement here). John Dzienkowski on the Legal Ethics Forum [a very interesting blog that those interested in the area of professional responsibility should check out here] raises an interesting point (here) about the location of the Workshop and its accessibility to teachers of Professional Responsibility (which includes the co-editors of this blog):

I have attended the AALS workshops in the past and find them to be very high in quality, however, I do criticize the AALS for the high cost of attending the conference which ranges from $430-$480.  I believe that the AALS should hold substantive workshops at a member law school site.  In today’s world of law school promotion, there should be a queue of schools willing to host conferences for no fee, perhaps even with a complimentary reception and/or dinner.  The cost of hosting such a conference would be far lower than the brochures that schools send out each US News season to increase the school’s exposure to voting faculty.  And, the benefit would be far greater to the hosting school.  How many of those brochures make it past the mailroom trash can?

While the AALS Annual Meeting is well attended, I’m not sure the mid-year meeting draws as large a crowd, and with the cut-backs in state funding at a number of law schools, it is difficult to get financial support to attend a conference such as this, including travel expenses, etc., on top of the fee. (ph)

The John M. Olin Fellows in Law program has a deadline of March 15 for applications for the three fellowships offered for aspiring academics. The website for the program (here) has the following description:

The John M. Olin Fellows in Law program will offer top young legal thinkers the opportunity to spend a year writing and developing their scholarship with the goal of entering the legal academy. Up to three fellowships will be offered for the 2005-2006 academic year.

A distinguished group of academics will select the Fellows. Criteria include:

• Dedication to teaching and scholarship
• A J.D. and extremely strong academic qualifications (such as significant clerkship or law review experience)
• Commitment to the rule of law and intellectual diversity in legal academia
• The promise of a distinguished career as a legal scholar and teacher

Benefits

Stipends will include $50,000 plus benefits. While details will be worked out with the specific host school for the Fellow, in general the Fellow will be provided with an office and will be included in the life of the school.

Co-Blogger Peter Henning has a new piece in the Buffalo Criminal Law Review, now available on SSRN titled, "Sarbanes-Oxley Act Section 307 and Corporate Counsel: Who Better to Prevent Corporate Crime?"  The article "argues that the SEC should adopt the withdrawal portion of the noisy withdrawal rule, and that withdrawal should be mandatory for both outside counsel and in-house lawyers when they become aware of corporate misconduct and the corporation refuses to take adequate remedial measures."  The rationale for this approach is explained in detail in the article.

SSRN also reports that Professor Stuart Green has a chapter in a book titled "DEFINING CRIMES: ESSAYS ON THE CRIMINAL LAW’S SPECIAL PART R.A." Duff & Stuart P. Green, eds., Oxford University Press, 2005.  He states that, "In this chapter analyzing the moral content of bribery, bribes are conceptualized as bilateral agreements between two parties (a briber and bribee) in which the briber gives or offers something of value in exchange for the bribee’s agreeing to act on the briber’s behalf." 

Professor Elizabeth Joh has two new pieces listed on SSRN that may be of interest to people teaching white collar crime. One is titled "Conceptualizing the Private Police," and the second is "The Paradox of Private Police."

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Each year the American Criminal Law Review puts out a survey on white collar crime.  The 2004 issue has student notes on topics such as antitrust violations, environmental crimes, false statements, health care fraud, mail and wire fraud, and tax violations.  The webpage contains a full listing of topics.

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Professor William H. Simon (Columbia) has an article in the December issue of The Atlantic, "The Confidentiality Fetish," that challenges what he sees as the overuse by lawyers of the protections afforded by the attorney-client privilege.  Professor Simon is one of the leading academics in the field of professional responsibility.  He argues that lawyers are effectively selling the privilege to protect information that society may be better served having revealed.  He states:

Lawyers, in short, have carved out a role for themselves as the privileged keepers of much information that is important to the public interest. Historically, lawyers have liked to think of themselves as defenders of individual liberty against an overbearing state, primarily through traditional advocacy—that is, persuasively asserting a client’s rights. Today, however, lawyers’ typical efforts to mediate between clients and the state rely less on advocacy and more on information control. This is a disturbing development; lawyers have brought to their new role as information guardians a powerful predisposition toward needless secrecy that suppresses and distorts information about many matters of public importance.

The push toward confidentiality, if it can be called that, is nothing new, at least among lawyers, and the attorney-client privilege has been described by the Supreme Court as the oldest one recognized by the law (Upjohn).  Nor is it necessarily a "fetish"–for which one definition is "an abnormally obsessive preoccupation or attachment; a fixation"–for lawyers to use a widely-recognized tool to a client’s advantage, or at least to protect the client’s current interests.  There is naturally a frustration with the privilege, in much the same way that the Fifth Amendment protection against self-incrimination thwarts a search for the truth.  Professor Simon’s point that lawyers use the privilege to their advantage as a marketing tool–he references the tobacco industry’s employment of lawyers to shield unfavorable research on the harmfulness of cigarettes–is well taken.  One of the advantages of having an attorney conduct an internal investigation is the benefit of both the attorney-client privilege and the work product protection to shield certain types of information generated by the investigation, at least for a while.

Professor Simon has also published an extensive article in the California Law Review in 2003 entitled "Whom (or What) Does the Organization’s Lawyer Represent.?".  A working paper version of his article is available on SSRN here. His analysis of the problems with identifying the true "client" of the organization is worth considering. (ph) 

An interesting working paper by Professor Peter Margulies (Roger Williams), entitled Above Contempt?: The Attorney General, the Courts, and Informational Overreaching in Terrorism Prosecutions, looks at the issue of prosecutorial control of information and incentives to withhold such information from defendants.  The abstract states:

Prosecutors face the continual temptation to overreach in decisions about the control of information. At each phase of a criminal proceeding, from investigation through trial, prosecutors make crucial decisions about information to disclose and highlight with courts, juries, and the public. In ordinary times, courts, defense counsel, the media, and internal sources of oversight can place some constraints, however tenuous, on the prosecutor’s efforts to monopolize the management of information. However, external events, such as the attacks of September 11, 2001, can weaken these constraints, producing alarming spikes in prosecutorial power.

The so-called "Detroit Terrorism Trial," in which with the government withdrew the most serious terrorism charges after it was revealed that the lead prosecutor withheld Brady information from the defense, is a good example of how the pressure on prosecutors to win convictions can result in a serious miscarriage of justice.

A post here on Nov. 25 mentioned, inter alia, Congressional consideration of a bill to criminalize interstate trafficking in horsemeat for human consumption.  An article by Trent England and Paul Rosenzweig in The American Spectator notes: "Ironically, the ‘American Horse Slaughter Prevention Act’ is not about preventing the slaughter of horses. It does nothing to stop horses from being killed for dog food or glue or as a good Godfather-style warning. The Act would only outlaw the killing of, or commerce in, horses for ‘human consumption.’ A better name for the bill might be the ‘More Horses for Glue Act.’" The ability, and eagerness, of Congress to criminalize more and more conduct seems inexhaustible, and a report by Prof. John Baker (LSU) for the Federalist Society, entitled Measuring the Explosive Growth of Federal Crime Legislation, tries to catalogue the scope of the federalization of criminal law.  Prof. Baker’s study notes,

• There are over 4,000 offenses that carry criminal penalties in the United States Code. This is a record number, and reflects a one-third increase since 1980.

• Previous studies conducted in 1989, 1996, and 1998 all reported "explosive" growth in the number of offenses created by Congress in the years since 1970. The rate of enactment has continued unabated since 1970.

• A review of Congressional enactments from the past seven years reveals that a very substantial number addresses environmental issues.