Reading list

No time to post something original today, but wanted to link to some other stuff you might not have seen yet:

First, there was an article in this morning’s WSJ by Law Blog author Ashby Jones, with Joann Lublin, called “Critics Blow Whistle on Law.”  For those who liked our criticism of the FCPA last week, in particular the Dodd-Frank whistleblower provisions, Ashby’s article raises many similar issues with respect to securities-fraud cases in general.

The sweeping Dodd-Frank financial reform law passed in July will apply similar types of financial rewards to a much larger universe of wrongdoing, including many types of securities or accounting fraud or bribery allegations, not covered by prior whistleblowing laws.

The “bounty” provision “runs in direct opposition” to internal fraud-detection efforts put in place or beefed up under the Sarbanes-Oxley law that passed after a wave of accounting scandals, says Richard Crist, chief ethics and compliance officer at Allstate Insurance Co. “It undermines a lot of work that a lot of us have done.”

In the past, companies typically attempted to address certain fraud allegations internally by setting up confidential hotlines through which employees report alleged ethical misdeeds and illegal behavior. But the Dodd-Frank provision offers a financial incentive to ignore a company’s own process and run straight to the government, management lawyers say.

Corporate whistleblowers who take original evidence of financial fraud under the Dodd-Frank law directly to the U.S. Securities and Exchange Commission or the Commodity Futures Trading Commission stand to get between 10% and 30% of a penalty that is over $1 million.

Meanwhile, plaintiffs lawyers eager to handle complaints on behalf of whistleblowers are getting the word out, issuing press releases and publishing articles about the new law and in some instances, running ads soliciting work.

It’s a good article, well worth a read.

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You might also have missed Scott Greenfield’s post on Saturday, “In for a Dollar.”  He’s a prolific writer, so if you waited until Monday to review your blawgs, this one was already below the fold.  But it’s worth scrolling down to find it.

Writing about the literally millions of stop-and-frisks conducted by the NYPD on perfectly innocent people, Scott proposes that the police have something at risk, to give them a personal incentive to think about maybe honoring our civil rights:

Struggling with this question, however, I’ve come up with a solution.  Every time a cop frisks someone and comes up empty, he should have to pay the person $10.  Not so much as to strike fear in the wallet of a police officer, but enough to make a cop think twice before hassling someone for nothing.  After, ten dollars here and ten dollars there, and pretty soon you’re talking about a day without donuts.

Okay, it’s not a foolproof plan.  It’s got some flaws, like the cop who refuses to pay over the $10 and leaves the friskee without recourse.  Or the addicts begging for a frisk so they can get their next fix.

But no class-action decision is going to change anything on the streets, any more than another column by Bob Herbert about a policy that everyone knows stinks, and yet continues unabated, is going to make the police feel really badly about humiliating blacks and Hispanics.

Check it out.

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Finally, as Doug Berman over at Sentencing Law and Policy puts it, “The new guidelines are here!  The new guidelines are here!

In other words, the new USSG guidelines — including the new reduction of the crack/powder cocaine disparity — are in effect as of now.  (Our criticism of that particular law is here.)

Doug has a lot of useful links in his post, both to the USSG’s own website and to posts by him and others that make sense of the new rules.  It’s worth taking a moment to review what the rules are, now, so go over there and start clicking if you haven’t already done so.

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UPDATE:  Just browsed an excellent thread over on Reddit asking criminal defense attorneys what kinds of cases they find hardest to defend.  One of the responses was by a public defender who didn’t answer the question, really, but whose rant about how the system really works is totally worth linking to here.

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