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Evaluating the Experts
The U.S. Supreme Court, in its landmark Daubert decision (Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)), established an empirical standard of evidentiary reliability to ensure that only those expert opinions predicated upon demonstrably valid knowledge would make their way into evidence. Daubert further instructed that when the expert testimony comes from a discipline that purports to be scientific, as does psychology, evidentiary reliability translates to a standard of scientific validity.
The Court delineated four factors to guide the trial judge when he or she, acting as gatekeeper, assesses the scientific validity of the principles and methods underlying the expert's opinion. The two primary factors, which require direct assessment of scientific validity, are testability/falsifiability, and error rate/practice standards analysis. Daubert also identified two secondary or indirect assessment criteria that may assist the court in discharging its gatekeeping obligation: 1) peer review/publication; and 2) general acceptance.
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.
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.
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.