- 50th Anniversary
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- Donahue Lecture Series
Under Article 66(c) of the Uniform Code of Military Justice (UCMJ), the military’s courts of criminal appeals have the unusual appellate power to conduct a de novo review of a trial court’s findings of fact. Congress gave the military’s appellate courts their unique fact-finding powers in 1950 because under the original UCMJ, special and general courts-martial were highly unprofessional proceedings and extremely susceptible to command influence, thereby creating the risk of unjustly convicting and harshly sentencing servicemembers. Originally, there were not even military judges presiding at summary courts-martial. Instead, a senior line officer untrained in the law was designated president of the panel and was responsible for deciding questions of law, such as the admissibility of evidence. The panel president also served as a juror, voting with the panel to decide the accused’s guilt or innocence and sentencing. While law officers were present at general courts-martial, they were not the presiding officers of the court and lacked the traditional judicial powers bestowed upon judges to ensure the integrity of trials and other judicial proceedings. Furthermore, both the law officer and panel president were hand-picked and evaluated by the convening authority. Based on this structure and the high potential for both prejudicial command influence and legal error, the appellate courts’ de novo review of a trial court’s findings of fact was an important protection for servicemembers.
Today, these justifications for the plenary fact-finding powers of the courts of criminal appeals no longer exist. Due to amendments to the UCMJ over the past fifty years, military trials now resemble civilian trials and are presided over at both special and general courts-martial by an independent and professional circuit of military judges with powers modeled after Article III judges. This has reduced the potential for command influence while increasing the professionalism of trials, thus mitigating the chances of legal error. Furthermore, the fact-finding power of the military’s courts of criminal appeals is actually an impediment to justice because it adds a considerable burden on the military’s already severely backlogged appellate system. Claims of factual insufficiency are frequently and easily made by appellate defense counsel, but are very time consuming for appellate prosecutors to respond to. Despite this huge investment of resources in conducting a de novo review of claims of factual sufficiency, the courts of criminal appeals almost never find factual insufficiency. On the rare occasion they do, courts rarely reduce a sentence, and therefore, the high costs of the power’s continued existence cannot be justified. Not only will removing this de novo fact-finding power reduce the military’s appellate backlog, but it will also do so without prejudicing the rights of servicemembers because they already have numerous due process protections that civilians do not.
Cap-and-trade is a failed policy. Under the Kyoto Protocol, global emissions have continued to increase and the European Union Emissions Trading System (EU ETS) price collapsed due to hot air and over allocation of emissions. The time has come to abandon cap-and-trade as a method or means of potentially reducing global greenhouse gas (GHG) emissions. As such, the European Union Twenty-Seven (EU-27) should abandon the EU ETS and adopt a carbon tax with reinvestment (CTR), leading the way for the United Kingdom, United States, and China to also adopt this strategy. Together, the EU-27, United Kingdom, United States, and China account for 57% of total carbon-dioxide emissions, not including land use and deforestation. If these countries, which account for approximately 65% of global gross domestic product (GDP) and over 60% of world trade, adopt this system, it would provide a significant incentive for the remainder of the world to adopt similar legislation.
The tax would apply to all goods and services based on emissions intensity plus shipping emissions, and once collected, countries can retain the revenue for the purposes of rebuilding the power grid and developing alternative energy sources for transportation. This formula will lead to significant reductions in GHG emissions. With a CTR in place, the EU, United States, United Kingdom, and China would reduce their economy-wide emissions by 48%, 49%, 51%, and 13%, respectively, within twenty years. This would amount to a combined 34.2% reduction of current global emissions, which is a significant down payment to avoiding the world warming by more than 2oC. With respect to China, the 13% reduction is contrasted with most current projections that it will double its GHG emissions. This would occur while automatically putting a border-trade adjustment in place. Finally, the EU is heavily dependent on energy imports. The majority of these imports come from Russia, which has flexed its energy muscle multiple times under President Putin. With a CTR structure, the EU would become energy independent in the power and heating sectors, thus providing added political, as well as economic power, for the EU on the world stage.
Due to the ambiguous language of the Fourth Amendment, courts have been unable to agree on a strict test as to what constitutes a reasonable search and seizure. For example, in United States v. Falso, the court held that evidence of child molestation, by itself, did not create probable cause for a search warrant for child pornography. In its reasoning, the court concluded that a crime involving the sexual abuse of a minor does not relate to child pornography. Therefore, officers lacked sufficient probable cause when executing the search warrant issued by the magistrate.
Likewise, in United States v. Hodson, the court held that evidence of child molestation, without more, was insufficient to create probable cause for a search warrant for child pornography. The court reasoned that when “probable cause [is established] for one crime (child molestation) but [the warrant is] designed . . . for evidence of an entirely different crime (child pornography)” the warrant lacks probable cause. Therefore, because there was no relation between the two crimes and no reasonable inference could be made to link the two for sufficient probable cause, the court held the search warrant to be defective.
The extraterritorial reach of the Federal Rules of Civil Procedure’s (Federal Rules) evidence-gathering provisions has long been a source of tension in foreign relations. The world we live in is increasingly interconnected and litigation between parties subject to multiple sovereigns has become more commonplace. Often, the discovery provisions of the Federal Rules come into conflict with foreign laws, such as banking secrecy or blocking statutes. Under such a predicament, a litigant that operates both abroad and in the United States is placed in a catch-22: produce discovery in violation of foreign law (and be subject to liability) or refuse to produce discovery (and be subject to sanctions). These types of scenarios can arise in almost every context and implicate the laws of many of nations. For example, consider the Securities and Exchange Commission’s (SEC) recent conflict with Deloitte’s branch in China regarding the production of documents. The SEC sought documents related to Deloitte’s audit of Longtop Financial Technologies, but Deloitte claimed it was barred from doing so by Chinese secrecy laws.
Courts have attempted to resolve these conflicts in a variety of ways. The United States Supreme Court has even offered guidance. Federal courts, however, continue to apply an inconsistent standard that balances various interests. Thus, it is common for courts to decide cases in this area in conflicting fashion. The conflicting decisions, however, run further than a typical circuit split. The United States District Court for the Southern District of New York recently decided virtually identical cases involving the discovery obligations of Chinese banks differently. Neither judge was wrong in either of those cases; rather, the legal standard itself provides the judiciary with almost unlimited discretion to make subjective policy judgments.
For many Americans, the thought of providing any form of medical care to a convicted murderer is incomprehensible, a sentiment embodying the tenuous interplay between principles of morality and the rule of law. The reality is that prisoners throughout the United States frequently undergo various medical procedures to treat their health care needs, but for transsexual prisoners, the uphill battle to receive treatment, including hormone therapy and sex-reassignment surgery (SRS), has been plagued by the courts’ general resistance to recognize the severity of gender dysphoria. The Eighth Amendment has long been interpreted to afford a prisoner the right to receive adequate medical care and treatment for his or her serious medical needs. The Supreme Court has further explained that the Eighth Amendment’s protections must conform to shifting and maturing notions of decency and social justice.
Gender Identity Disorder (GID) has been recognized as a mental illness; individuals currently incarcerated and suffering from GID—or gender dysphoria as it has been recently renamed—assert that SRS is a “medically necessary” treatment for this condition under the Eighth Amendment. In 2012, the United States District Court for the District of Massachusetts became the first American court to grant an injunction mandating a prison to provide SRS to a transsexual prisoner in the case of Kosilek v. Spencer (Kosilek II). Michelle Kosilek, a male-to-female transsexual currently serving a life sentence for the murder of her wife, sought to have the Massachusetts Department of Corrections (DOC) provide her with the controversial procedure. The DOC doctors determined that the only adequate treatment for Kosilek’s condition was to undergo the procedure but nonetheless denied treatment out of the purported rising fears for prison security. Holding that the security concerns were merely a pretext for denying treatment, the court found that prison officials were deliberately indifferent to Kosilek’s serious medical needs and ordered the treatment.
New York City currently maintains one of the lowest crime rates among all major American metropolitan areas. Several decades ago, however, the urban hub of the Empire State found itself in peril as it experienced a devastating rise in violent crime. This upward trend persisted until the early-to-mid 1990s when statistics on crime began to indicate a change for the better. Crime rates in New York City continued to descend until the turn of the millennium when they stagnated, resulting in a plateau of reported crime, which continues to endure. The plummeting crime numbers coincided with an historic ascent in the number of stop and frisks performed by city police officers. The decline in urban crime and simultaneous rise in stop and frisks suggests a correlation between the two phenomena.
The discourse surrounding the stop-and-frisk practices in New York City is dominated by the poignant argument of critics claiming that such practices have been unjustly used as a vehicle for discrimination by the New York Police Department (NYPD). Moreover, particular crime statistics do in fact indicate that stop and frisks carried out by the NYPD have disproportionately targeted people of color. Drawing conclusions based solely on the interpretation of raw data, however, paints an incomplete picture of a complex issue. A more thorough examination of the larger context of urban crime and policing practices suggests that a variety of additional factors account for the racially disproportionate figures.
When the United States Congress passed the Foreign Corrupt Practices Act (FCPA) in 1977, its chief concern was deterring off-the-books bribes of foreign officials by domestic corporations. The FCPA authorized the Securities and Exchange Commission (SEC) to issue new rules, including Rule 13b2-2, which imposes civil liability on corporate officers who mislead accountants concerning the corporation’s finances. In SEC v. Das, the Eighth Circuit Court of Appeals addressed the issue of whether civil liability is present in cases where the corporate officer did not knowingly mislead. Splitting from the Ninth Circuit—the only other circuit court that addressed this issue directly—the Eighth Circuit rejected the proposed “knowingly” requirement, holding that a reasonableness standard shall apply in such cases.
Das concerned infoUSA, Inc., a publicly traded, Nebraska-based corporation that sold databases to businesses and consumers. More specifically, the case concerned events involving three corporate officers: Vinod Gupta, who served as chief executive officer and chairman until 2008; Rajnish Das, chief financial officer from 2003 to 2006; and Stormy Dean, chief financial officer from 2000 to 2003 and then again from 2006 to 2008. The SEC claimed, in a 2010 civil enforcement action, that Dean violated provisions of the Securities Exchange Act of 1934. The agency claimed, among other things, that both former chief financial officers, Das and Dean, deceived auditors concerning payments infoUSA had made to Aspen Leasing Services LLC and Annapurna Corporation—two companies owned by Gupta—to pay for Gupta’s homes, yacht, and cars. The SEC’s complaint further alleged that Dean and Das had signed the company’s management letters to external auditors, falsely representing that all related-party transactions had been properly disclosed. At trial, the judge instructed the jury to find that Dean violated the law if he did not act “reasonably” regarding the false statements made to auditors.
The U.S. tax code allows citizens and domestic corporations to credit foreign taxes paid against U.S. taxes owed. A foreign tax paid by a U.S. citizen or a domestic corporation may be creditable against domestic taxes when such tax is considered a levy on income. Although the tax’s “predominant character” controls in determining whether it is an income tax, the effect of a foreign country’s characterization of the tax on such analysis has remained unsettled. In PPL Corp. v. Commissioner, the Supreme Court considered whether a windfall tax paid in the United Kingdom (U.K.), and characterized by the U.K. as a tax on value and not a tax on income, is creditable in the United States. The Court held that the tax formula adopted by the U.K. Labour Party was an income tax in the United States for credit purposes because the economic reality of the levy was a tax on the company’s income.
A Conservative Party-controlled British Parliament privatized certain government-owned companies in the 1980s and 1990s through an initial sale to the public known as a “flotation.” Petitioner PPL Corporation (PPL) was a U.S. company that owned twenty-five percent of one of the privatized companies, South Western Electricity plc (SWE). For the four years after privatization, the British government required certain companies, including SWE, to charge customers the same rates they had charged under the government’s control. The companies became much more efficient during this period and earned large profits.