When looking a gift horse in the mouth, it's best to accurately count the teeth

Lowell Milken’s recent $10 million gift to the UCLA School of Law has been met with a firestorm of ignorant vitriol from a number of UCLA Law School professors. As 
reported in the New York Times earlier this week, one professor, Lynn Stout, went so far as to lament that “the creation of a Lowell Milken Institute for Business Law and Policy will damage my personal and professional reputation” and “I think it’s somewhat distressing that so few people seem to be aware of Lowell and Michael Milken’s business history.”

In my latest Injustice Department column, I discuss this history, show that Lowell Milken was nothing more than a victim of prosecutorial over-zeal, and argue that UCLA should be proud, and humbled, that such a victim of “law and policy” might found an institute for its study.

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Justice 'Deferred'

In a recent front-page article in The New York Times, reporters Gretchen Morgensen and Louise Story argue that “Deferred Prosecution Agreements” represent a softer approach to corporate crime. What the Times misses, however, is the extent to which these arrangements, and their proclivity for punishing the innocent, sow terror within the rank and file of corporate employees and officers. The Deferred Agreements, I write in my latest Forbes.com column, represent a creative way for the federal government to extract a large fine from the company, manufacture convictions of individual officers and employees, enhance the reputations and conviction rates of federal prosecutors before they head to Wall Street law firms for high-paying partnerships--all while dispensing with the inconvenience of indictment or trial.
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New York Times cites TFD in article on criminal justice reform

In a front-page article in today's New York Times, Supreme Court correspondent Adam Liptak writes about how former ideological adversaries are uniting under the banner of criminal justice reform. Conservatives, libertarians, and liberals have all found common ground in seeing the dangers of overcriminalization, Liptak writes, citing Three Felonies a Day as an example.

Harvey A. Silverglate, a left-wing civil liberties lawyer in Boston, says he has been surprised and delighted by the reception that his new book, “Three Felonies a Day: How the Feds Target the Innocent,” has gotten in conservative circles. (A Heritage Foundation official offered this reporter a copy.)

The book argues that federal criminal law is so comprehensive and vague that all Americans violate it every day, meaning prosecutors can indict anyone at all.

Read more to view a PDF of the NYT print edition in your browser.

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On 'Honest Services' Fraud case, New York Times columnist quotes TFD

Today's New York Times features an article on a federal law that typifies the problem laid out in Three Felonies a Day. Known as "Honest Services" Fraud, this elastic, 28-word statute has been used by U.S. Attorneys to criminalize all manner and kind of activity, ranging from political corruption to sharp-elbowed business practices. What the Supreme Court will soon decide, Adam Liptak writes, is whether the law is unconstitutionally vague. My take: It unquestionably is.

The honest services law is but one example of what Harvey A. Silverglate, a civil liberties lawyer in Boston, calls “an over-criminalization problem.” His new book, “Three Felonies a Day: How the Feds Target the Innocent,” argues that the average American professional unwittingly commits several serious crimes each day.

“Even the most intelligent and informed citizen (including lawyers and judges, for that matter),” Mr. Silverglate writes, “cannot predict with any reasonable assurance whether a wide range of seemingly ordinary activities might be regarded by federal prosecutors as felonies.”

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New York Times examines link betwen Goldman Sachs and FBI

A former trader for Goldman Sachs was arrested last month for allegedly stealing code from his employer. The resulting case, as Alex Berenson writes in today's New York Times, offers "a glimpse into the turbulent world of ultrafast computerized stock trading." One aspect in particular is the government's role in the case, and how what would normally considered a civil infraction has been handled by the criminal authorities, including the FBI. 

Harvey A. Silverglate, a criminal defense lawyer in Boston not involved in the case, said he was troubled that the F.B.I. had arrested Mr. Aleynikov so quickly, without evidence that he had made any effort to use or sell the code. Such disputes are generally resolved civilly rather than criminally, Mr. Silverglate said.

“It is astonishing that the F.B.I. arrested this defendant at all,” he said. Other firms have also sued former employees recently over concern about high-frequency trading software, though two similar cases are the subject of civil suits rather than criminal prosecution.

Read on at nytimes.com.

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