F. Hodge O'Neal Corporate and Securities Law Symposium

Close Corporations and the Criminal Law: On “Mom and Pop” and a Curious Rule

Established principles governing corporate criminal liability apply indiscriminately to all corporations, regardless of size or corporate form. Yet to date, little consideration has been given to the question whether the reasons supporting recognition of corporate liability for crime apply with equal force to close corporations. Nor has the question whether the same sentencing rules should apply to close corporations and their publicly held counterparts been addressed. Hence, this Article journeys…
F. Hodge O'Neal Corporate and Securities Law Symposium

The Federal Sentencing Guidelines for Corporations: Their Development, Theoretical Underpinnings, and Some Thoughts About Their Future

Ilene H. Nagel and Winthrop M. Swenson
This Article traces the Sentencing Commission’s path in completing that task32 and considers what work lies ahead. The Article addresses four specific questions: (1) Given that the Commission’s primary mandate is to facilitate greater certainty, uniformity, effectiveness and rationality in the sentencing of individuals, why did the Commission tackle the area of corporate sentencing at all? (2) How did the Commission arrive at the philosophical bases that underlie the fine…
F. Hodge O'Neal Corporate and Securities Law Symposium

Beyond Fines: Innovative Corporate Sentences Under Federal Sentencing Guidelines

Richard S. Gruner
This Article examines innovative corporate sentences beyond fines. It emphasizes types of corporate sentences recommended under the United States Sentencing Commission’s Sentencing Guidelines for Organizations. The Article has four goals. First, it seeks to inform judges, prosecutors, defense attorneys and others in the criminal justice community about these as yet unfamiliar corporate sentencing options. Second, it explores the policy rationales supporting innovative corporate sentences. Third, it considers ambiguities in the…
F. Hodge O'Neal Corporate and Securities Law Symposium

Organizational Sentencing Guidelines: The Cart Before the Horse

Pamela H. Bucy
Part I of this Article provides a brief overview of the Guidelines and discusses how they define and measure corporate culpability. Part II describes and critiques the current standards for assessing corporate criminal liability. Part III proposes a new standard of corporate criminal liability that builds upon premises inherent in the Guidelines. Finally, Part IV addresses the question of whether a need remains for a new standard of corporate criminal…
F. Hodge O'Neal Corporate and Securities Law Symposium

Beyond Organizational Guidelines: Toward a Model Federal Corporate Criminal Code

Leonard Orland
In an effort to stimulate discussion on the policy choices that Congress should have (but has not) made concerning corporate crime, and in an effort to underscore how deeply the Guidelines arrogate to the Commission basic policy matters that are more properly within the business of Congress, I propose a Model Federal Corporate Criminal Code. This Code is designed to function either independently of, or in conjunction with, a sentencing…
F. Hodge O'Neal Corporate and Securities Law Symposium

Some Practical Considerations in Developing Effective Compliance Programs: A Framework for Meeting the Requirements of the Sentencing Guidelines

Steven F. Molo and Dan K. Webb
This Article discusses the advantages and disadvantages of implementing an effective compliance program. It then discusses the specific elements that the Guidelines require for a sentencing court to find a compliance program effective and thus entitled to credit as a mitigating factor in the sentencing process. Finally, the Article sets forth a basic framework for establishing a compliance program that will satisfy the Guidelines’ requirements.
F. Hodge O'Neal Corporate and Securities Law Symposium

Rules Without…: Some Critical Reflections on the Federal Corporate Sentencing Guidelines

Jeffrey S. Parker
Essentially, what is wrong with the Guidelines is that they are rules “without”-without rationality, without authority, without constitutionality. What went wrong is an old pattern of deficiency in government that seems to recur in endless variation: power without adequate discipline becomes tyranny. The possible solutions are equally simple: reinforce the discipline, or withdraw the power. The former tends to be a risky strategy for a free people, for most disciplinary…
Case Comment

Chaotic Sentencing: Downward Departures Based on Extraordinary Family Circumstances: United States v. Johnson, 964 F.2d 124 (2d Cir.1992)

Donald C. Wayne