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The U.S. Supreme Court and Business
Attorneys are much like laypersons when it comes to the U.S. Supreme Court; we tend to think of the High Court in terms of its landmark, headline-grabbing cases that impact our fundamental legal rights, such as Miranda warnings and freedom of speech, for example, the latter as found in Citizens United v. Federal Election Commission, ____ U.S. ___ (Jan. 21, 2010) (and what about the now immortal “Alito shake”?). But nowhere does it say (originalists please take note) that the Justices must limit their penultimate review only to matters of constitutional law.
As a point in fact, the Supreme Court gives equal weight (if not necessarily equal numbers) to crucial issues that affect the conduct of business in these United States. The High Court has long recognized that corporations are citizens too, with rights of their own. See, e.g., Central Hudson Gas v. P.S.C., 447 U.S.557 (1980) (corporations enjoy the right of free speech). Given all the above, a summary of the some of the more notable business-related decisions of the Court rendered this past year is in order. Inarguably, this brief review is limited to the author's own estimation of the most far-reaching landmarks from this term, but we are confident that it will, at a minimum, promote a fuller understanding of just how the High Court affects American business.
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.