White collar crime outline

Themes to Class/ Policy Issues

A. Two main purposes to Criminal law:
1. Utilitarian/Consequentialism- purpose of punishment is to deter the individual and society from crime
2. Retributive/Just Deserts- punishes person for their immoral acts
- Person deserves punishment to repay society for their immorality regardless of what utility it serves

B. Themes to class:
1.Federalism- concern of federal government encroaching on authority of state governments
- Brumley (5th)- Court was concerned about this and thus, required that in order for there to be an honest services case, there must be a state law duty being violated
- Federalization- duplicative federal crimes
2. Judiciary’s role
a. Rules of construction:
(1) Rule of lenity- an ambiguous rule should beconstrued against the government and not the individual
(2) Legislative history- is used less now because as Scalia says, can always find legislative history to support your argument
(3) Common law meaning incorporated- a statutory term with a definite common law meaning when it is incorporated is assumed to have incorporated that common law meaning unless otherwise made explicitlyprovided
(4) Strict Construction- construe statute according to its most obvious interpretation
b. Judiciary going too far- some argue that courts go too far in interpreting statutes or applying them to defendants
(1) Brumley dissent
c. Common law terms-
3. Constitutional Rights of Defendants
a. Fair notice- issue here is whether a statue provides notice as to what is unlawful orwhether it is too ambiguous to do so
(1) Two types of vagueness challenges:
(a) Public knowledge- statute may fail to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits
(b) Enforcement- enforcers of the statute don’t have clear standards to determine what is criminal
- “encourages arbitrary or discriminatory enforcement”
(2)Honest Services- Brumley court discuses whether honest services provides fair notice to client because of its ambiguity
- Argument that statute does not provide notice is that the court says each Circuit must interpret the statute for themselves- this leads to lack of uniformity for the Federal scheme
(3) Common law terms- many common law terms are vague
- i.e. “willingly”, “knowingly”,“corruptly”
4. Prosecutorial Discretion- concern with:
a. Plea Bargaining/Sentencing
- Charging multiple counts
- i.e. Mail/Wire fraud- charging for each mailing
b. Criminalization of Corporations
c. Deciding to go after Corporations or Individuals
5. What is property?
- Right to control
- honest services
- confidential information
6. Criminalization andOver-Criminalization

Mens Rea

- Ask Moohr about this section- Does she think I organized it ok? Which ones exactly are strict liability? Are public welfare offenses really strict liability???????

A. Strict Liability- mistake of “legal facts” or facts is not a defense
1. Weitzenhoff- even though defendant was not aware that the amount of pollutants they were discharging were illegal(mistake of “legal facts”), they were still liable under the statute (not a defense)
- This requires defendant to affirmatively ensure that the amount of pollutant they are dumping (legal fact) is legal
- Analogy to Statutory rape- defendant for statutory rape does not have to have knowledge of the legal facts (i.e. age of the individual) in order to be liable for an offense.
- age of theindividual = amount of pollutant
2. Policy argument against an offense that presumes knowledge of facts:
a. Not just desserts- person is held liable despite no culpability for the crime (they didn’t know they were committing a crime)
b. No deterrence:
(1) a crime that charges an individual when they are not culpable will not deter future acts because individuals will not know when they...