- Professor Stephanos Bibas, Pennsylvania Law
- Professor John Rappaport, Chicago Law
In June 2013, documents leaked by Edward Snowden sparked widespread debate about secret government surveillance of Americans. Just over a year later, the shooting of Michael Brown, a black teenager in Ferguson, Missouri, set off protests and triggered concern about militarization of law enforcement and discriminatory policing. In Unwarranted, Barry Friedman argues that these two seemingly disparate events are connected―and that the problem is not so much the policing agencies as it is the rest of us. We allow these agencies to operate in secret and to decide how to police us, rather than calling the shots ourselves. And the courts, which we depended upon to supervise policing, have let us down entirely.
The book's author, Professor Barry Friedman, the Jacob D. Fuchsberg Professor of Law at New York University School of Law, Professor Orin Kerr the Fred C. Stevenson Research Professor of Law at The George Washington University Law School, and John Malcolm, Director and Senior Legal Fellow at the Edwin Meese III Center for Legal and Judicial Studies for the Heritage Foundation, will join us to discuss this new book.
Farha v. United States, currently pending on a petition for writ of certiorari to the U.S. Supreme Court, is a case study raising basic notions of due process, fair notice, the rule of lenity, mens rea, and whether administrative and civil remedies would be more appropriate. What began as a highly publicized raid by some 200 FBI agents on a Florida health care company over an accounting dispute ended in the indictment, conviction, and prison sentences for the Wellcare executives for fraud.
On appeal, where the case was captioned Clay v. United States, the U.S. Court of Appeals for the Eleventh Circuit upheld the convictions over the objections of the defendants that the jury instruction impermissibly allowed the jury to convict if the defendants were “deliberately indifferent” to the law’s requirement as opposed to finding a “knowing” violation as the statute requires. The Supreme Court in 2011, in Global-Tech Appliances, a civil case involving patent infringement, held that "knowledge" cannot include "deliberate indifference" to show sufficient mens rea to establish infringement. Accordingly, the cert petition, filed by Seth Waxman of WilmerHale, seeks to have the Court rule that the jury instructions should require a higher mens rea standard, all the more so in a criminal case.
This case is particularly important for all regulated industries, where there are numerous laws and complex regulations governing conduct subject to administrative, civil, and criminal enforcement.