Search results

Deferred prosecution agreements (DPAs) are the tool of choice for federal prosecutors when adjudicating corporate misconduct. A DPA is a negotiation that permits the allegedly guilty party from undergoing a criminal trial if they avoid committing further wrongdoing for a specified period. This paper aims to examine whether DPAs are a beneficial mechanism for the criminal justice system to use while adjudicating corporate misconduct. By conducting in-depth semi-structured qualitative interviews with 24 practitioners in the legal field and white-collar crime experts, this study identifies the shortcomings and advantages of DPAs and highlights what policy enactments might enhance their application. The study contributes to the existing literature by expanding the narratives used by judicial officials, legal practitioners and white-collar crime scholars on the role of DPAs.

The current study is an in-depth qualitative analysis that explores judicial actors’ and white-collar crime scholars’ opinions on the adoption of DPAs to adjudicate corporate misconduct. The literature on DPAs is currently derived primarily from law and literature reviews published by legal scholars. Clandestine negotiations are not accessible to the public and are frequently kept in sealed files unless a breach of contract occurs, resulting in the case proceeding to trial. Hence, a qualitative analysis is the best approach to evaluate the effectiveness of DPAs. Further, little evidence is available that focuses on the opinions of professionals who have participated in these agreements. The interviews were conducted over Zoom and lasted an average of 43 min, with the longest interview spanning 1 h and 45 min and the shortest interview being 14 minutes. A non-probability sampling method – specifically, snowball sampling – was used to generate a total sample of 24 legal professionals and white-collar crime scholars. Initial participants were found by contacting law offices specializing in white-collar crime litigation and using current networks to attain access to a broader range of participants. Then, 19 participants provided referrals throughout the study. The final sample consisted of nine government officials, eight legal practitioners and seven white-collar crime academics experts. One of the government official interviews was excluded from the final research project due to a lack of expertise in the field of white-collar crime. The interview questions were designed to promote in-depth conversation and insight into personal opinions on the adoption of DPAs. Several inquiries highlighted whether DPAs are an appropriate response to corporate misconduct and whether they reduced recidivism through their intended deterrent effect. Furthermore, several descriptive questions sought to understand which criminal justice actors support the adoption of DPAs in white-collar crime cases and why. Coding of the data was first conducted individually by each author. The researchers then compared thematic findings that reflected consensus.

An immediate theme identifiable in the research is the intrinsic value that DPAs offer in adjudicating corporate wrongdoing. As indicated by a participant, corporate misconduct is not “black or white,” stressing the importance of prosecutors having a middle ground between criminal prosecution and the dismissal of charges. A judicial official indicated that “DPAs are another essential arrow in a prosecutor’s quiver – and something a defense attorney can bargain for” (Respondent 5). Seven government officials and legal practitioners noted that you are unable to send a corporation to jail, and you do not simply want to put them out of business; thus, a DPA is the only tool in which the government can mandate structural change in a company without dismantling the entire entity. Only three academics concurred with the government officials and legal practitioners that DPAs are beneficial and offer prosecutors a vital middle ground. One academic, for example, stated that “DPAs have given U.S Attorney offices that ability to be involved for a considerable amount of time in a company's business, while simultaneously promoting change within the entity” (Respondent 14). Additionally, DPAs ensure that corporations are held criminally liable without triggering an endless cycle of collateral consequences for innocent third parties. One legal practitioner, for example, stated: “Just look at the Enron case; they charged Arthur Andersen with obstruction of justice and dismantled the entire entity they made it where the business was never going to come back. A small subset of individuals, in this case, should have been held responsible but instead, hundreds and if not thousands of people were harmed. With this in mind, DPAs are extremely important, in that it limits collateral consequences because DPAs take a more holistic view that criminal prosecution does not consider” (Respondent 21). Another respondent highlighted that “DPAs are the only tool available that can be employed to change an entire organization structurally” (Respondent 20). Ultimately, the findings suggest that there is a consensus among respondents that DPAs are an appropriate response to corporate misconduct, particularly when the agreement stipulates that a company must hire an external compliance monitor and update their current compliance system. Overall, participants emphasized that these stipulations promote a sense of corporate accountability, provide for the dismissal of guilty employees and mandate structural change. The majority of the respondents (n = 20) insisted that DPAs are advantageous, yet a subset of participants were skeptical of their use in white-collar crime prosecutions. One legal practitioner, for example, noted that “DPAs are political creatures that are awarded as political favors to the largest of corporations that our economy relies upon” (Respondent 17). Another government official confirmed this statement, indicating that “DPAs are a mere slap on the wrist for large corporations – they simply see it as doing business” (Respondent 6). Four academic participants emphasized that DPAs are typically negotiated with multi-level corporations and are not extended to the small businesses that suffer the dire consequences of criminal prosecution. One academic, for instance, stressed that “the question becomes is it fairly applied and being implemented properly. Larger companies are more likely to receive and benefit from a DPA, thus, raising the question of fairness” (Respondent 12). Another academic who was previously a government official stated: “DPAs risk abuse – there have been several instances where prosecutors have forced companies to donate money to favored charities and overstepped their powers. Sometimes DPAs also come with monitors. For example, banks typically have to pay for the auditor, and it becomes extremely intrusive, and it it not clear that they are efficient.”

Several limitations exist in this research. First, it is not a comprehensive study that is representative of the larger population, which limits generalizability. Given the contention of research on DPAs, this qualitative research contributes to the literature, and its findings are likely transferable to multiple settings in which DPAs are used. Second, DPAs are processed and drafted differently across jurisdictions; thus, comparing DPAs across state levels and among departments in the federal government would be equivalent to comparing apples to oranges. This comparison is yet another limitation to the study because criminal justice practitioners operate in both the state and federal jurisdictions. Another challenge in the current study and something that likely will be a problem for future researchers is the difficulty of gaining access to experts in an exclusive field of criminal justice, such as federal prosecutors, Department of Justice officials, federal judges and elite corporate defense attorneys. Ultimately, several obstacles arose during the study, particularly when recruiting participants to gain a large enough sample size to conduct meaningful analysis. This resulted in smaller sample size but rich, in-depth data that achieved saturation among participants.

Several policy implications are identifiable. First, it appears that DPAs are a mainstay of white-collar crime prosecution. No participants advocate for their complete removal from the prosecution process. Participants highlight that DPAs occupy an essential middle-ground between dismissal and criminal charges. Without this mechanism, prosecution would be impeded, and holding corporate criminal actors liable would increasingly become formidable. Although it appears that the system cannot function without DPAs, several respondents emphasize that we must begin to hold individuals accountable alongside corporations. Another policy implication that a minority of participants mentioned within the study involves ensuring that our compliance monitoring system operates appropriately. A majority of participants note that the overarching stipulation that promotes structural change within an organization is adopting a functioning compliance monitoring system, thus, emphasizing the importance of this process operating smoothly and ethically. The selection of an independent compliance monitor may be problematic. For example, a former government compliance monitor notes that not all monitors are experts in the field they are overseeing. A pharmaceutical expert, for example, may be attempting to regulate an automotive organization, which may present unique challenges. An agency of federal professionals dedicated to supervising specific industries such as automotive, pharmaceutical and financial would ensure that organizations are actually implementing the terms of the DPA.

Ultimately, the current research highlights the necessity of empirically studying the benefits and drawbacks of such agreements. Future research on the topic remains onerous due to the scarcity of a centralized database that contains extensive details of DPAs. The present study suggests that the verdict on DPAs is undecided, with more than half of the study's criminal justice professionals advocating for their continued and even increased use. However, about half of the participants, particularly academics, called attention to the agreements’ potential bias. The disagreement among participants is most contentious in the consideration of a DPA centralized database which would immensely aid future research and policy advancements.

Predatory trading is a stock market trading technique in which certain market participants exploit information about other market participants' need to trade. Predatory trading often harms others. Hence, this paper examines the determinants and effects of financial practitioners' and lay people's judgments of predatory trading. Specifically, it investigates how the public availability and reliability of the exploited information affect their ethics and legality judgments and how the latter influence their behavioral intentions and regulation support.

The authors conducted two scenario judgment studies. In the first study, participants were financial practitioners, and in the second – lay people.

Practitioners often judge predatory trading to be ethical. Practitioners and lay people incorporate in their ethics and legality judgments the public availability of the exploited information but tend to discount the legal reliability criterion. Lay people justify their ethics judgments using harm, legal or profit maximization principles. Practitioners' intentions to engage in predatory trading and lay people's intentions to let predatory fund managers invest their money depend on their judgments, which influence their regulation support.

This paper is the first to explore people's judgments of predatory trading. It highlights that despite the harm that predatory trading involves, practitioners often judge it to be ethical. Although law tends to lag behind financial innovation, people base their judgments and hence also behavioral intentions on their interpretation of the regulation. Hence, it reveals a dark aspect of the relationship between ethics and legality judgments.

This study is carried out to evaluate how well legal knowledge can be demonstrated by a built environment professional via the scenario-based approach to the learning of law modules.

A Delphi analysis of the advice provided by an MSC quantity surveying student, on a scenario-based legal problem arising due to a property contract, is carried out. The tendered legal advice was submitted as part of the assessment requirements for an MSc law module, following the university criteria, after the teaching of a law module. The student report, which attained an A-grade, and the assessment criteria used for marking/grading by the university were subsequently sent to 18 practicing lawyers, who were selected to constitute an expert panel, to independently judge the extent of legal knowledge demonstrated in the student report.

The Delphi analysis outcome showed that the expert panel holds a similar consensus view to the university on the level of legal knowledge demonstrated and by extension the effectiveness of the law module in imparting legal knowledge to a non-lawyer. The study outcome shows how well legal knowledge can be acquired and applied by a non-lawyer, within the context of the built environment, via scenario-based teaching of a law module.

This study serves as a preliminary step necessary to arouse further research toward empirically profiling the current outlook of a wider range of graduating students receiving scenario-based legal education in the built environment.

This study aims to adopt a systematic review approach to examine the existing literature on law and LLMs.It involves analyzing and synthesizing relevant research papers, reports and scholarly articles that discuss the use of LLMs in the legal domain. The review encompasses various aspects, including an analysis of LLMs, legal natural language processing (NLP), model tuning techniques, data processing strategies and frameworks for addressing the challenges associated with legal question-and-answer (Q&A) systems. Additionally, the study explores potential applications and services that can benefit from the integration of LLMs in the field of intelligent justice.

This paper surveys the state-of-the-art research on law LLMs and their application in the field of intelligent justice. The study aims to identify the challenges associated with developing Q&A systems based on LLMs and explores potential directions for future research and development. The ultimate goal is to contribute to the advancement of intelligent justice by effectively leveraging LLMs.

To effectively apply a law LLM, systematic research on LLM, legal NLP and model adjustment technology is required.

This study contributes to the field of intelligent justice by providing a comprehensive review of the current state of research on law LLMs.

The Customary Land Delivery Institutions (CLDIs) provide the platform for the supply of developable land in most cities in sub-Saharan African countries. While there is a need to measure the effectiveness of CLDIs to compare their performance with others or themselves over time, there is however a dearth of evidence-based frameworks that could be adopted for such an assessment. This study developed a framework for the evaluation of the effectiveness of CLDIs. This is with a view to providing a tool for measuring the performance of land governance.

A total of 46 good governance criteria for measuring the various dimensions of CLDIs generated from the literature were transformed into a measurable scale which was validated by a panel of 16 experts through a modified Delphi approach. A pilot study was also conducted on 42 land-based professionals to assess the reliability of the framework. Content Validity Index (CVI) was calculated for relevancy scores while clarity was measured by clarity score. Cronbach alpha was also employed to measure the reliability of the framework.

The result of the 46 criteria validated by the experts revealed that 89.5% of items in the developed instrument have a content validity index (I-CVI) equal to or greater than the 0.85 threshold and a mean I-CVI of 0.90. With the CVI score and the analysis of the comments made by the experts, six items were removed from the instrument and a total of six new items were added. The final corrected instrument after a further iteration had a total of 46 items. The reliability test also revealed a Cronbach alpha score of 0.82.

This paper provides a framework useful for developing countries, especially in the development of land delivery policies and provides a framework for the analysis of the important aspects thereof.

This paper demonstrates the development of a holistic framework for the assessment of CLDIs which hitherto were not in existence.

The primary purpose of this study is the development of Zimbabwe's rescue culture. The current framework for rescue operations was shaped by the historical development of laws pertaining to insolvency and liquidation. Socioeconomic pressures in Zimbabwe can be attributed to some of the main factors that led to the need for rescue legislation and restructuring, which in turn fueled the shift from a culture that supported credit to one that supported debtors. The aim of this study is to offer an overview of the key ideas and principles of the corporate rescue programs now implemented in Mauritius and to investigate the ways in which these ideas and principles impacted the newly enacted Zimbabwean Insolvency Act.

This study adopts a comparative legal approach using Zimbabwe and Mauritius as comparative case studies. The fact that both countries are former British colonies and their insolvency legal framework inspired by common law makes them appropriate to be compared. Legislation and case law are used to conduct the comparative study with the aim of Zimbabwe drawing lessons from the Mauritian legal framework on insolvency. Mauritius is a nearly ideal subject for a comparative case study because of its vibrant and fairly successful bankruptcy law framework, as well as its fictional corporate rescue culture. These might provide Zimbabwe with some motivation and guidance.

The legal framework on insolvency in Zimbabwe has been found to be too stringent and does not provide companies with any lifeline. There is arguably a tendency of forcing companies out of business rather than implementing a rescue culture. Selected aspects of the Mauritian legal framework on insolvency can be mapped onto the Zimbabwean system to implement a much-needed rescue culture given its challenging economic context.

This study contributes to comparative legal literature in the field of insolvency. It is among the very few research work that compares the legal structure on insolvency of Zimbabwe and Mauritius in a collaborative endeavor to enhance the insolvency law and its application in Zimbabwe.

The aim of the present study is to shed light on the role of legal practitioners, namely, lawyers and notaries, in the fight against money laundering: Are they considered as facilitators or obstacles against money laundering? How does the global and the EU legal framework deal with the legal professionals?

The research follows a deductive approach attempting to respond to questions such as: How do the lawyers’ and notaries’ societies react in front of the anti-money laundering measures that concern them and why? What are the discrepancies between the lawyers’ professional secrecy and the obligations that EU anti-money laundering legislation assigns them?

This study disclosures the response of the European union and international legal and regulatory framework as well as the reflexes of the international and European legal professionals’ associations to this danger. It also demonstrates the reaction of lawyers against European union anti-money laundering legislation, to the point that it limits not only the confidentiality principle but also the position of the European judicial systems to the contradiction between this principle and the lawyers’ obligation to report their suspicions to the authorities.

To fulfil the study goals, it was necessary to overcome some obstacles, like the limitation of existing sources. Indeed, transnational empirical research considering the professionals who facilitate money laundering is narrow. Besides, policymakers and academics only recently expressed more interest in money laundering and its facilitators.

This paper fulfils an identified need to study the legal professionals’ role not only in money laundering practices but also in anti-money laundering policies.

The legal profession is vulnerable to abuse for the purposes of money laundering and terrorist financing. According to the Financial Action Task Force (FATF), that vulnerability justified updated global recommendations that urge countries to require lawyers, notaries and other independent legal professionals – including sole practitioners, partners and employed professionals within law firms – to identify, assess and manage the money laundering and terrorist financing risks associated with their services and to ensure that they have appropriate mechanisms in place to provide risk assessment information to competent authorities. Those recommendations proved contentious, with concerns raised by both legal academics and legal professional bodies about the implications of certain aspects of the requirements for the principle of lawyer–client confidentiality. Despite those concerns, many countries have introduced or amended regulatory regimes to extend their application to the legal sector to comply with the FATF’s standards. The purpose of this paper is to contribute to the debate surrounding the extension of AML/CTF obligations to the legal profession.

This paper considers three jurisdictions – the UK, Israel and Australia – at different stages in their journey towards compliance with the FATF’s anti-money laundering (AML) and counter-terrorist financing (CTF) standards for the legal profession. While the UK has a long-established and well-embedded AML regulatory framework for legal professionals, Australia remains non-compliant with the FATF standards. Israel occupies a position between these two ends of the spectrum: following criticism of the omission of lawyers from its AML/CTF regime, Israel implemented due diligence rules for the profession. In 2018, Israel was found to be partially compliant with the relevant FATF recommendations.

It argues that although there are challenges involved, there are also important benefits. Therefore, Australia should act to implement its proposed changes sooner rather than later. Its persistent failure to appropriately address globally recognised areas of vulnerability leaves Australia open to integrity abuse. In addition, if the government delays addressing this issue until pressure from the FATF (such as deadlines for compliance and, if necessary, a finding of non-compliance) forces it to comply, this may tarnish Australia’s reputation, threaten its access to international financial markets and adversely affect the legitimacy and effectiveness of its AML/CTF regime.

Originality in this context refers to the distinctiveness and uniqueness of a paper’s content and approach. In this case, the originality lies in the fact that there is no other existing paper that addresses the topic of three common-law jurisdictions at various stages of their progression towards aligning with the FATF AML/CTF standards, specifically within the context of the legal profession. Furthermore, the timeliness of this paper is underscored by the fact that multiple jurisdictions are currently deliberating their positions on the focus of this paper. This adds to its originality and relevance, as it addresses a gap in the literature while also contributing to the ongoing discourse surrounding compliance with FATF’s standards.

Architectural, engineering and construction (AEC) project organizations are under constant pressure to improve the mental health of project management practitioners (PMPs) due to complexity and dynamism involved in project management practices. Drawing on institutional theory, this research explores how external environmental factors, political factors, economic factors, social factors, technological factors, environmental factors and legal factors (PESTEL), influence mental health management indicators that contribute to positive mental health.

Purposive sampling method was used to collect survey data from 82 PMPs in 60 AEC firms in Australia. Structural equation modelling was used to test the hypotheses based on 82 items of data collected from PMPs.

Overall, this study revealed interesting findings on the impact of external environmental factors on mental health. The hypothesized positive association between political factors and mental health management indicators was rejected. The data supported the proposed hypothetical correlation between economic factors and mental health management indicators and the influence of social factors on mental health management indicators. Moreover, a hypothetical relationship between technological factors and mental health management indicators was supported. The significant positive impact of environmental factors on mental health management indicators proposed was supported, and legal factors’ positive correlation on mental health management indicators was also supported.

Despite the limitations, the present findings suggest that all the external environment factors except political factors shape mental health management outcomes.