Potential Criminal Liability Research Articles

Current knowledge of legal determinants of postmortal organ donations among lawyers and physicians — a cross-sectional survey and narrative review regarding potential criminal liability in opt-out donation model country

Introduction: Knowledge of the basic legal acts and regulations concerning postmortal organ donation is a crucial issue in ensuring that the will of the potential donors is respected and that physicians are legally protected from potential consequences. This study aimed to assess the awareness and knowledge of physicians and lawyers about the basic legal determinants and criminal responsibility in an opt-out donation model country. Material and methods: Survey-based study involved 100 participants, including physicians (group P; n = 50) and lawyers (group L; n = 50). An original questionnaire consisted of 21 questions about the knowledge of the legal regulations of organ donation in Poland. Additionally, a narrative review of Polish transplantation legal acts was performed to identify potential criminal responsibility related to postmortal transplantation. Results: In the study group all lawyers and 50% of physicians declare that their routine work does not include donors’ death confirmation. 62% of physicians are included directly in donors’ qualification. 92% of lawyers and 90% of physicians suggest that access to knowledge in the subject is not easy. The results of substantive knowledge in the field of transplantation law did not differ statistically between the groups, the median total score in 9 questions test was 5 (3:6) in L and the same in P 5 (2:6). The authors identified four aspects of a physician’s criminal responsibility in the case of postmortal transplantation. Conclusions: This study has revealed that knowledge of the basic legal acts and regulations of postmortal donation, considered to be of paramount importance in ensuring respect for transplant law, needed to be improved. Therefore, further education in these aspects may result in more sufficient protection of physicians from potential legal consequences.

What does it all meme? An exploration of meme stock litigation, regulatory scrutiny and defences for broker-dealers

US financial market regulators have taken a renewed interest in retail trading and brokerdealer practices following the January 2021 ‘meme stock’ extreme market volatility. In this paper, the authors examine broker-dealer practices and trading rules that are the subject of pending litigation. Specifically, this paper examines areas of potential regulatory interest in the aftermath of the trading frenzy, including payment for order flow and related customer disclosures. It also examines the rationale for certain trading restrictions implemented by some broker-dealers during the period of extreme volatility. It then analyses legal defences for broker-dealers in pending investor litigation. Lastly, this paper discusses potential criminal and regulatory liability for amateur traders active on social media and online forums.

Alone on an Island

Alone on an Island

Business and Human Rights – Recent Trends in Germany

There is an undeniable, growing trend in the current Corporate Social Responsibility (CSR) discussions: the responsibility of corporations to abide by and to protect human rights. This discussion includes potential criminal liability for corporations as well as their management for human rights violations. This article will survey the legal status quo of corporate responsibility in the context of human rights protection in Germany. It will then outline two drafts of legislation: a first draft leaked to the press in February 2019 that did not result in further legislative action, and a second draft recently leaked to the public that included key points for such a legislation to become the new German Human Rights Supply Chain Due Diligence Law.

Beyond acts and omissions: remark-able criminal conduct

AbstractI argue that instead of analysing a criminal offence's conduct element in terms of acts and omissions, we should ask whether the defendant has belied a contextually salient expectation as to how she should, or routinely would, conduct herself. Slightly different sets of expectations are salient depending on whether our interest is in questions of criminalisation, or the proper interpretation of existing offences, but the criminal law is normally interested only in conduct-tokens that belie a relevant expectation. Belying such an expectation need not itself suggest culpability, but it does mark out the conduct as remark-able, in the sense of being ‘worthy of remark’.I argue that this ‘Remark-able Conduct Requirement’ (RCR) analysis helps us narrow the field of conduct-tokens that are normatively appropriate candidates for criminalisation, and when adapted for use in interpreting existing offences it: (a) generates familiar and plausible liability outcomes; (b) simplifies the application of the law; (c) offers a principled argument to limit the scope of offences drafted in overly broad terms, by excluding innocuous doings from potential criminal liability; and (d) suggests ways to make progress on philosophical puzzles about how we should conduct ourselves.

High Crimes: Liability for Directors of Retail Marijuana Corporations

Selling retail marijuana in the United States is illegal — or is it? A rising number of states have legalized the retail sale of marijuana and are busily regulating these sales and the companies that make them. Even so, the sale of marijuana is a crime under federal law. Are companies that sell retail marijuana duly sanctioned, productive contributors to their state economies, or are they felons just waiting for the wheels of justice to turn in their direction? At this moment, no one can answer that question with certainty. What is certain is that more companies are being formed each day for the purpose of cultivating, producing, and/or distributing retail marijuana, many of which are being formed as corporations (Retail Marijuana Corporations). Like their counterparts outside of the marijuana industry, Retail Marijuana Corporations are subject to the same state corporation statutes and the same federal criminal statutes and securities laws. This means, like other corporations, Retail Marijuana Corporations are governed by boards of directors, who owe their companies the traditional duties of care and loyalty. What sets directors of Retail Marijuana Corporations apart from other directors is their precarious legal circumstances: Directors of Retail Marijuana Corporations sit at the helm of companies that are knowingly violating federal law. In overseeing these companies’ businesses and guiding them toward profitability, directors of Retail Marijuana Corporations expose themselves to a great deal of potential criminal and civil liability. Existing scholarship on marijuana-related businesses introduces some of the challenges faced by corporations engaged in the marijuana industry under state law. This Article expands the inquiry to explore new avenues of state and federal liability with a particular focus on directors. Part I provides a brief outline of the laws regulating the retail marijuana business at the federal and state levels. Part II surveys the various sources of liability directors of Retail Marijuana Corporations face. It first addresses liability for breach of fiduciary duty under state fiduciary duty principles. Next, it outlines criminal aiding and abetting liability under the federal Controlled Substances Act. It then discusses directors’ exposure under the Racketeer Influenced and Corrupt Organizations Act. Last, it analyzes these directors’ potential liability under the federal securities laws’ antifraud provisions. Part III concludes with thoughts about why directors’ liability matters to Retail Marijuana Corporations’ investors.

Foreseeably Unclear: The Meaning of the 'Reasonably Foreseeable' Criterion for Access to Medical Assistance in Dying in Canada

In April 2016, the federal government of Canada introduced draft legislation to regulate medical assistance in dying (MAiD). There was a swift and fierce response to various aspects of the Bill with some of the fiercest criticisms aimed at one of the criteria for eligibility found in the proposed text for s.241.2(2) of the Criminal Code: (2) A person has a grievous and irremediable medical condition only if they meet all of the following criteria:… (d) their natural death has become reasonably foreseeable, taking into account all of their medical circumstances, without a prognosis necessarily having been made as to the specific length of time that they have remaining. Some criticized the provision for being inconsistent with the Canadian Charter of Rights and Freedoms (drawing especially but not exclusively on the decision of the Supreme Court of Canada in Carter v. Canada). This criticism is now being litigated in the courts through Lamb v. Attorney General and Jean Truchon and Nicole Gladu v. Attorney General (Canada) and Attorney General (Quebec) and is not the focus of this paper. Others criticized the provision for containing a phrase that is unfamiliar and unclear: “reasonably foreseeable.” Despite attempts to remove s. 241.2(2) (at the hearings for both the House of Commons Standing Committee on Justice and Human Rights and the Standing Senate Committee of Legal and Constitutional Affairs, and in amendments passed by the Senate but rejected by the House of Commons), the provision remained in the version of the legislation that came into force on June 17, 2016. Not surprisingly, eighteen months on, there is confusion among health care providers, lawyers, and the public as to what the provision means. One court case tackled the issue head on but, for reasons discussed below, did not resolve all of the confusion. As a result of the ongoing confusion, there is reason to be concerned that under- or overinclusive interpretations of this eligibility criterion are adversely affecting access to MAiD. With critical interests at stake (e.g., access to MAiD and potential criminal liability), it is essential that the meaning of the provision be clarified. Furthermore, the meaning of “reasonably foreseeable” will no doubt be contested in the two Charter challenges to the federal MAiD legislation currently before the courts in British Columbia and Quebec. In order to determine whether s.241.2(2) violates the Charter, the courts will have to first determine what it means because whether the limits on access to MAiD violate the Charter depends on the scope of the limits. For these two reasons, and because MAiD providers and assessors and the public need guidance as they wait for an authoritative interpretation from the courts, it is worth bringing the principles of statutory interpretation to bear on the phrase “reasonably foreseeable.”

Interpreting Canada's Medical Assistance in Dying Legislation

When the Canadian medical assistance in dying (MAiD) legislation came into force in June 2016, it was widely noted that the meaning of some of its key terms and phrases was unclear. For example, questions were immediately raised about the meaning of “incurable illness, disease, or disability,” “advanced state of irreversible decline in capability,” and “natural death has become reasonably foreseeable.” Interpretation challenges are not uncommon with new legislation. However, in the context of something as significant as access to MAiD and potential criminal liability for getting the meaning of the legislation wrong, these challenges must be confronted by those who have the responsibility and authority to provide interpretative guidance to patients and health care practitioners. The risks of leaving uncertainty and confusion unaddressed in this context are significant both in terms of the seriousness of the consequences and the probability of occurrence. Some individuals may be denied access who should have access (too narrow interpretation) and some individuals may be given access who should not (too broad interpretation). Two individuals in the same circumstances may be treated differently (one allowed and one denied access) simply because their providers interpret the legislation differently. In addition, some individuals may forego effective symptom management in order to maintain the necessary capacity to reiterate their request for MAiD. Other patients may be roused from palliative sedation immediately prior to provision and, by definition, be brought back into a state of intolerable suffering in order to reiterate their request. Finally, the uncertainty about the meaning of key terms and phrases may have a chilling effect on physicians’ and nurse practitioners’ willingness to provide MAiD. With almost a year of experience of MAiD under the federal legislation, it is time for those who can help to clarify the meanings and correct the misunderstandings to do so. In the spirit of contributing to such a project, we propose a set of interpretations of key phrases in the legislation. We call upon all relevant entities to exercise their authority and capacity to provide interpretative guidance for, and education about, the practice of MAiD in Canada. They can do this by adopting, endorsing, and disseminating interpretations such as those presented in this paper.

OBOWIĄZEK UDZIELENIA POMOCY W PRZYPADKU SPRZECIWU OSOBY ZAGROŻONEJ W ŚWIETLE ART. 162 KODEKSU KARNEGO

The Duty of Medical Personnel to Provide Medical Assistance to a Person In Grave Danger in the Event of His/Her Refusal to Accept Help, in the Light of Art. 162 of the Polish Criminal CodeSummaryThe subject of this article is the refusal to accept medical assistance by a person in a condition involving a threat to his/her life or a serious health risk, and the ensuing effect this may have on the potential criminal liability of the medical and/or rescue personnel in the event of theirwithdrawal of assistance. The main problem is whether on the groundsof Art. 162 of the Polish Criminal Code (kodeks karny, k.k.) a patient’srefusal to accept medical assistance is relevant in criminal law, and ifso, what criteria have to be met for its admission.Art. 162 of the Polish Criminal Code does not specify a general requirement of the endangered person’s consent to the administrationof medical rescue services. The exceptions are those medical services for which separate provisions have been laid down requiring the patient’s consent. In the remaining scope the duty of medical and/or rescue staff to administer the assistance defined in Art. 162 § 1 is not subject to the consent of the person whose legal interest is being secured. However, this general observation does not rule out the relevance of the endangered person’s refusal to accept medical assistance and/or rescue. In particular, difficulties may arise in the assessment in the light of criminal law of the withdrawal of assistance to a suicide who refuses to have rescue services administered, although the scope of the problem is certainly much wider.

Legal aspects of the crimes committed in insolvency proceedings - comparison of Czech and Austrian legislation

The subject of this paper is to compare the Czech and Austrian legislation considering offenses which entrepreneurs and other entities (natural person) may commit within the insolvency proceedings or which are related to the insolvency. Emphasis is placed on the comparison of Czech and Austrian legislation with regard cross-border relationships within the business environment and living between the Czech Republic and Austria.Czech entrepreneurs and natural person in Austria can get into a situation where their debtor is located in Austria and finds himself insolvent or vice versa. Also the Czech entrepreneurs and natural person may do their bussines or live in Austria and may get into such a situation when they are close to the situation which can lead to their decline. This paper would be for them a practical recommendation on how to avoid potential criminal liability.

Corporations, international crimes and national courts: a Norwegian view

AbstractFor a number of reasons, questions regarding the accountability of corporations for actions that might be complicit in the commission of international crimes have gained prominence in recent times. Though initiatives regarding what is more broadly described as business and human rights are to be welcomed, this sometimes distracts from existing systems of accountability, especially when those acts, which may be discussed as human rights violations, equally constitute crimes. Whilst not all criminal jurisdictions extend to legal persons, the Norwegian Penal Code does. This article analyses the Norwegian Penal Code's provisions, in light of amendments made to it in 2008 to include international crimes in it, with the effect of extending those crimes to corporations. The article first addresses the personal, material, temporal, and geographical scope of the penal code. It then addresses the potential consequence of the exercise of jurisdiction in light of the only case in recent times in Norway that deals explicitly with a corporation's potential criminal liability for war crimes. The article then addresses three additional issues with respect to provisions on complicity, intent, and defences under the Norwegian Penal Code, before concluding with some reflections on the possible future effects of this legislation and the possibility that it will inspire developments elsewhere.

Protecting Citizens and Their Speech: Balancing National Security and Free Speech When Prosecuting the Material Support of Terrorism

Federal law criminalizes a variety of terrorist activities, including the use of violence or certain weaponry such as chemical or biological weapons. Yet, these laws do not provide prosecutors with the necessary tools to prosecute those terrorists who die in the attacks, evade capture. Nor does it empower law enforcement to go after the supporters of those committing acts of terrorism. Moreover, the nature of law and policy in the post 9/11 world implicates fundamental questions about strategy, tactics, criminal justice, and the ontological nature of the war on terror. Due in part to these challenges, Congress criminalized the act of providing material support to a designated foreign terrorist organization. Resulting laws and regulations have led to restrictions and limits on the freedom of speech. Looking to the First Amendment analysis of various campaign finance law challenges provides a comparable framework for addressing freedom of speech concerns in the context of national security. Moreover, borrowing from campaign finance law provides assistance in addressing obstacles faced by prosecutors, defense attorneys, and practitioners seeking to advise clients on their potential criminal liability.

Transfer Pricing – Criminal Tax Risks under Italian Law

The authors examine the potential criminal liability of taxpayers in the transfer pricing domain. In particular, they examine the types of criminal offences, the use of estimates regarding values, cases where penalties are not to be imposed, the burden of proof and who may be found criminally liable.

Transnational corporations and international law: bringing TNCs out of the accountability vacuum

PurposeThis paper aims to highlight the disparity between the huge global influence and reach of transnational corporations, on the one hand, and the lack of international legal infrastructure for regulating TNC activity, on the other. Existing avenues for holding TNCs accountable for breaches of international standards are woefully inadequate. After rejecting the idea of subjecting TNCs to potential criminal liability, the paper then proposes a set of principles for international TNC responsibility modelled on the 2001 Draft Articles on State Responsibility. The potential future role of regional human rights courts and the International Labour Organisation in holding TNCs accountable is also explored.Design/methodology/approachA survey of existing legal texts and secondary scholarship was undertaken to determine the existing coverage of the regulatory infrastructure for holding TNCs to account, and to identify gaps in that coverage.FindingsSignificant governance gaps in the existing institutional infrastructure were identified, creating a permissive environment within which blameworthy acts by TNCs may occur without adequate sanctioning or reparation. Potential regulatory and institutional avenues for filling these gaps were identified.Research limitations/implicationsThe author lacks hands‐on experience of the political barriers which may exist and may make the proposed reforms unrealistic. Those in the field are encouraged to consider whether the proposed reforms are feasible/desirable.Practical implicationsThe paper contains implications for the future of international law, the regional human rights courts and the International Labour Organisation.Originality/valueThe paper contains original proposals for the future evolution of international law in its application to TNCs.

How Sturdy is that Digital Couch? Legal Considerations for Mental Health Professionals Who Deliver Clinical Services via the Internet

ABSTRACT This article reviews legal issues related to providing mental health services via the Internet. It provides a general overview of the field and discusses jurisdiction, licensure, legal duties (competence, consent, confidentiality), and other legal concerns related to the business of online counseling. It surveys potential criminal and civil liability issues, noting procedural and substantive aspects of the relevant law. The author concludes that, although providers face a variety of challenges, their efforts in providing a service needed and desired by an important segment of the help-seeking population are worthwhile.

Fairness to Rightness: Jurisdiction, Legality, and the Legitimacy of International Criminal Law

This paper investigates the legitimacy of international criminal trials and defends them against objections grounded in the principle of legality. The argument begins with the observation that the center of gravity in international criminal tribunals lies in the trials themselves more than the punishments inflicted. Such often-discussed aims as giving victims a voice or creating a historical record of mass atrocities are goals of the trial process, not the punishment. Often, it is the spectacle of a former leader brought before a court for politically-motivated atrocities that captures the public imagination; the trial itself has a theatrical or didactic component. That is not an objection to the trials, if they are conducted fairly. But the use of the trial as political theater puts pressure on its fairness. This paper argues that the aim of the trials is norm projection: trials are expressive acts broadcasting the news that mass atrocities are, in fact, heinous crimes and not merely politics by other means. The trials are meant to project the message that atrocities are crimes, not political deeds that exist beyond good and evil, a vision that underlies traditional amoralist concepts of raison d'tat or Kriegsraison. The second principal thesis of the paper is that the legitimacy of the tribunals comes from the fairness of their procedures and punishments, not their political pedigree. The legal and political arguments for the jurisdictional authority of international bodies to establish tribunals are only partly satisfactory, and insufficient on their own to legitimize the tribunals. Tribunals bootstrap themselves into legitimacy by the quality of justice they deliver; their rightness depends on their fairness. The clearest example is the Nuremberg Tribunal. Established by victorious allies with jurisdiction only over the Axis powers, it had to prove that it was no show trial, and the clearest evidence was the acquittals it produced. The final sections of the paper address the concern that international tribunals characteristically violate the principle of legality, in two ways: they are generally established only after the crimes they try are committed, and they sometimes read the law broadly, from a victim-centered point of view, rather than narrowly, as the legality-based rule of lenity in criminal law would require. The paper argues that the two motivating arguments behind the principle of legality - concern about fair notice, and concern about despotic abuse of the power to punish - are less compelling in international criminal law than they are in domestic law. As for the fair-notice rationale: the more horrendous the deeds, the less fairness requires formal notice of potential criminal liability. As for the government abuse rationale: : there is simply much less danger of government abuse in international criminal law than in domestic legal systems, because ICL arises from weak, decentralized institutions rather than strong, concentrated ones. Skeptics point to the free-floating, cosmopolitan character of the tribunals in order to attack their legitimacy. But exactly the same facts demonstrate that the worry about abuses of the legal process by holders of state power is not a powerful one.

CAP Forum on Enron: What If Andersen Had Shredded in Toronto or Calgary? The Potential Criminal Liability of Canadian Public Accounting Firms*

ABSTRACTBoth Canadians and Americans often assume that the legal system, like many other aspects of society, works the same in both countries. Just as these assumptions often fail to stand up to detailed scrutiny, so too may the assumption that Arthur Andersen LLP could have been charged with and convicted of obstruction of justice in Canada. In this paper, we examine the hypothetical question of what would have happened if a public accounting firm had shredded documents, fearing a provincial securities regulatory investigation in Toronto or Calgary. We examine the key differences between both the law and the institutional environment in Canada and the United States to determine whether such a prosecution could occur in Canada. We find that the letter of the law would probably have resulted in a successful prosecution. However, because of differences in the institutional environments, a criminal prosecution of a Canadian public accounting firm would probably never have occurred. The implications of this conclusion are discussed.

What if Andersen Had Shredded in Toronto or Calgary? The Potential Criminal Liability of Canadian Public Accounting Firms

Both Canadians and Americans often assume that the legal system works, as with apparently many other aspects of our society, the same in both countries. Just as these other assumptions often fail to stand up to detailed scrutiny, so may the assumption that Arthur Andersen LLP could have been charged with and convicted of obstruction of justice in Canada. In this paper we examine the hypothetical question of what if a public accounting firm had shredded documents as a result of fearing a provincial securities' regulatory investigation in Toronto or Calgary. We examine the key differences between both the law and the institutional environment in Canada and the United States to seek to determine whether such a prosecution could occur in Canada. We find that the letter of the law would probably have resulted in a successful prosecution if it was undertaken. The differences in the institutional environments likely would never have lead to the decision to prosecute criminally a Canadian public accounting firm. Implications of this conclusion are discussed.

HIV infection and AIDS in the public health and health care systems: the role of law and litigation.

The AIDS Litigation Project has reviewed nearly 600 reported cases involving individuals with human immunodeficiency virus (HIV) infection and acquired immunodeficiency syndrome (AIDS) in the federal and state courts in the United States between 1991 and 1997. Cases were identified through a federal and 50-state computer and library search. An important subset of litigation relates to HIV/AIDS in the public health and health care systems, since the law affects health care institutions and professionals, patients, and public health policy in America. This subset of HIV/AIDS litigation includes testing and reporting; privacy, the duty to warn, and the right to know; physician standards of care in prevention and treatment; and discrimination and access to health care. In broad terms, the review demonstrates a reliance on voluntary testing and protection of patient privacy through HIV-specific statutes and the common law. Negligence with potential civil and criminal liability has been alleged in cases of erroneous or missed diagnosis of HIV infection. In the first AIDS case to be considered by the Supreme Court, the Court will decide whether patients with asymptomatic HIV infection are protected under the Americans With Disabilities Act. Considerable progress has been made, both socially and legally, during the first 2 decades of the epidemic, but much still needs to be accomplished to protect privacy, prevent discrimination, and promote tolerance.

Pornography and the possible criminal liability of internet service providers under the obscene publication(s) and protection of children act

This paper examines potential criminal liability of Internet Service Providers (ISPs) in England and Wales, under the Obscene Publication(s) Acts 1959 and 1965 and Protection of Children Act 1978. Commentators seek to distance commercial intermediaries by arguing that they are carriers not publishers of pornographic material. It is argued in this paper that this polarization creates an inaccurate picture of potential criminal liability. The term ‘carrier’ does not appear in either act and it is necessary to look for words that may have an equivalent meaning. In addition, recent statutory amendments to the primary legislation and judicial decisions have resulted in the pragmatic extension of the meaning of relevant terms. Even if potential criminal offences are identified there is also the overlooked problem of against whom and in what capacity the allegation can be brought.