The Failure of Mitigation?

Robert J. Smith, Sophie Cull & Zoë Robinson

Volume 65, Issue 5, 1221-1256

A vast literature details the crimes that condemned inmates commit, but very little is known about the social histories of these capital offenders. For example, how many offenders possessed mitigating characteristics that demonstrate intellectual or psychological deficits comparable to those shared by classes of offenders categorically excluded from capital punishment? Did these executed offenders suffer from intellectual disability, youthfulness, mental illness, or childhood trauma? The problem with this state of affairs is that the personal characteristics of the defendant can render the death penalty an excessive punishment regardless of the characteristics of the crime. This Article begins to fill the mitigation knowledge gap by describing the social histories of the last hundred offenders executed in America. Scouring state and federal court records, this Article documents the presence of significant mitigation evidence for eighty-seven percent of executed offenders. Though only a first step, our findings suggest the failure of the Supreme Court’s mitigation project to ensure the only offenders subjected to a death sentence are those with “a consciousness materially more depraved” than that of the typical murderer. Indeed, the inverse appears to be true: the vast majority of executed offenders possess significant functional deficits that rival— and perhaps outpace—those associated with intellectual impairment and juvenile status; defendants that the Court has categorically excluded from death eligibility.

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Unbranding Confrontation as Only a Trial Right

Shaakirrah R. Sanders

Volume 65, Issue 5, 1257-1292

This Article challenges the oft-cited but unpersuasive rule that the Sixth Amendment Confrontation Clause only applies at the trial stage of a “criminal prosecution.” I examine the most likely interpretation of the term “criminal prosecution” at the time of the Founding and conclude that the term would have included felony sentencing. I explore the Counsel Clause’s early rejection of the “trial-right-only” rule and the recent erosion of the “trial-right-only” rule with regard to the Jury Trial Clause in Alleyne v. United States. I advocate for eliminating the trial-right-only theory of the Confrontation Clause to allow cross-examination of testimonial statements that are material to punishment and where cross-examination assists in assessing truth and veracity. In such cases, I advocate a practical application of the fundamental right to confront witnesses during felony sentencing. Ultimately, I propose a uniform application of the Sixth Amendment’s structurally identical Counsel, Jury Trial, and Confrontation Clauses at felony sentencing.

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The “Too Big to Jail” Effect and the Impact on the Justice Department’s Corporate Charging Policy

Court E. Golumbic & Albert D. Lichy

Volume 65, Issue 5, 1293-1344

In the wake of the 2008 financial crisis, the failure of the Department of Justice (“Justice Department” or “DOJ”) to bring criminal charges against any financial institutions prompted critics to question whether the DOJ maintained a policy that certain corporations are “too big to jail.” The criticism piqued after the DOJ announced that it had entered into a deferred prosecution agreement (“DPA”) with HSBC to resolve a massive money laundering and government sanctions investigation.

This wave of criticism is the backdrop for what the Authors call the “too big to jail” effect—two related developments, each of which has the potential to impact the future of DPAs in the corporate crime context. The first is a willingness on the part of at least one federal district court to inject a level of judicial intervention into the process of structuring DPAs. In approving the HSBC, Judge John Gleeson issued a groundbreaking opinion articulating, for the first time, a standard for district court review of the terms of a DPA. The second is an emerging willingness on the part of the DOJ to pursue criminal charges over DPAs in high-profile cases involving financial institutions. In a strong departure from past practice, the DOJ recently secured guilty pleas from the foreign subsidiaries of UBS and RBS, SAC Capital Advisors and three related entities, and the parent of Credit Suisse.

This Article examines the impact of the “too big to jail” effect on the Justice Department’s corporate charging practices. The Authors argue that DPAs should not be abandoned. Instead, Congress should amend the Speedy Trial Act to require substantive, judicial review of the terms of DPAs. To this end, the Authors propose a standard of review that is designed to maximize the benefits of DPAs, while minimizing the concerns that have historically accompanied their use.

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Completing the Energy Innovation Cycle: The View from the Public Utility Commission

Jonas J. Monast & Sarah K. Adair

Volume 65, Issue 5, 1345-1392

Achieving widespread adoption of innovative electricity generation technologies involves a complex system of research, development, demonstration, and deployment, with each phase then informing future developments. Despite a number of non-regulatory programs at the federal level to support this process, the innovation premium—the increased cost and technology risk often associated with innovative generation technologies—creates hurdles in the state public utility commission (“PUC”) process. These state level regulatory hurdles have the potential to frustrate federal energy goals and prevent the learning process that is a critical component to technology innovation. This Article explores how and why innovative energy technologies face challenges in the PUC process, focusing on case studies where PUCs have approved or denied utility proposals to deploy high cost, first-generation energy technologies. This Article concludes with an outline of possible strategies to address PUC concerns by allocating the innovation premium beyond a single utility’s ratepayers.

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Note – “Between” a Rock and a Hard Place: Martin Marietta v. Vulcan and the Rise of the Backdoor Standstill

Sasha S. Hahn

Volume 65, Issue 5, 1393-1418

A recent trend has created an anomaly in interpreting confidentiality agreements in the context of merger negotiations. After the Canadian decision in Certicom v. Research in Motion and the Delaware Court of Chancery and Delaware Supreme Court’s decisions in Martin Marietta Materials, Inc. v. Vulcan Materials Co., standstill agreements may be read into standard confidentiality agreements without being separately negotiated or intended. These decisions have created the force of entire agreements out of the words “between” and “legally required.” This Note argues for a contextualist, rather than traditionalist, approach to interpreting these “backdoor” standstills to avoid unintended consequences for parties to these agreements.

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Note – “Please Don’t Stop the Music”: The Need for Fairness in Digital Copyright

Adam Vukovic

Volume 65, Issue 5, 1419-1440

Each month, over 100 million Americans listen to and discover music through Internet radio stations. Section 114 of the Copyright Act requires Internet radio stations, as providers of digital radio transmissions, to pay performance royalties. Due to an outdated royalty determination method, these Internet radio stations regularly spend over half of their revenue to secure royalties for the songs streamed through their websites—far more than paid by digital radio stations. The Internet Radio Fairness Act sought to equalize the royalty rates paid by Internet radio services and their digital counterparts. Unfortunately, due to fierce lobbying, the bill has been abandoned and Internet radio stations continue to face challenges to securing fair and reasonable royalty rates. This Note first seeks to explore the history of U.S. copyright legislation to better understand how we have reached such disparate royalty determination methods. Subsequently, this Note considers the arguments against uniform digital radio royalty schemes and discusses how the abandonment of the Internet Radio Fairness Act was a missed opportunity as passage of the Act would have provided Internet radio stations with the financial flexibility required to make technological advancements that could benefit all relevant parties.

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Note – Arbitration at the Tipping Point: Challenging Claim-Suppressing Arbitration Clauses

James Parrinello

Volume 65, Issue 4, 1441-1468

If you have entered into a contract for goods or services with a corporation recently, then chances are that an arbitration clause governs any potential legal claims you may have arising from that contractual relationship. In theory, arbitration is a cheap and efficient way to assert claims and allows a claimant to avoid the backlogged court system. For consumers, however, arbitration has morphed into a dispute resolution system that is no longer a fair alternative to the courts. Two recent Supreme Court decisions have validated corporations’ use of the inequitable, claim-suppressing mechanism known as a class action arbitration waiver. The simple clause prevents claimants from forming groups to assert common claims and share costs in the arbitral proceeding. In practice, a corporation with an enforceable class action arbitration waiver will reap a windfall because an individual claimant will choose not to pursue a claim that will cost more to bring than she expects to recover. In court, the Federal Rules of Civil Procedure allow for class action lawsuits when individual claims would not be viable. Class action arbitration waivers eliminate the comparable mechanism in arbitration and provide corporations with a strong incentive to insert such clauses into contracts with consumers. This Note analyzes recent Supreme Court class arbitration precedent and considers potential challenges to these disadvantageous arbitration clauses.

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