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The Federal Courts' Gate-Keeping Function for Fixed and Invariable Evidence of Custom and Usage
The role of the trial judge in screening proffered custom and usage evidence has evolved with time and is now part of the gate-keeping function provided in the federal rules of evidence. This article traces some of the relevant background and discusses how the federal rules now guide the courts in the exercise of that function.
Reliable knowledge of the customs and practices of a particular industry can be useful in the interpretation of contracts, including those that provide insurance. See Appleman on Insurance Law & Prac. 2d '5.7 (2005); Richard A. Lord, Usage and Custom, in 12 Williston on Contracts '34:2 (4th ed. 2005). The roots of the doctrine stretch back to 13th and 14th century efforts by English jurists to incorporate the law of merchants (derived from customs) into the general common law. See generally Charles A. Bane, From Holt and Mansfield to Story to Lewellyn and Mentschickoff: The Progressive Development of Commercial Law, 37 U. Miami L. Rev. 351, 352-62 (1983). This English effort spread to the United States and eventually culminated in the creation of the Uniform Commercial Code, which both codified the law of merchants and left room for its development and expansion through the continued evolution of customs and practices. See Uniform Commercial Code '1-102. In keeping with the general view of the Code's primary drafter (Karl Lewellyn), the Code deals with questions of “custom” and “usage” as matters of fact instead of questions of law. See Bane, 37 U. Miami L. Rev. at 376.
The DOJ's Corporate Enforcement Policy: One Year Later
The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
The DOJ's New Parameters for Evaluating Corporate Compliance Programs
The parameters set forth in the DOJ's memorandum have implications not only for the government's evaluation of compliance programs in the context of criminal charging decisions, but also for how defense counsel structure their conference-room advocacy seeking declinations or lesser sanctions in both criminal and civil investigations.
Use of Deferred Prosecution Agreements In White Collar Investigations
This article discusses the practical and policy reasons for the use of DPAs and NPAs in white-collar criminal investigations, and considers the NDAA's new reporting provision and its relationship with other efforts to enhance transparency in DOJ decision-making.
Bankruptcy Sales: Finding a Diamond In the Rough
There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.
A Lawyer's System for Active Reading
Active reading comprises many daily tasks lawyers engage in, including highlighting, annotating, note taking, comparing and searching texts. It demands more than flipping or turning pages.