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Browsing by Author "Boyne, Shawn Marie"
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Item Financial Incentives and Truth-Telling: The Growth of Whistle-Blowing Legislation in the United States(Springer, 2016) Boyne, Shawn Marie; Robert H. McKinley School of LawAlthough government efforts to encourage whistleblowers to come forward date back to 1778, the United States has enjoyed a conflicted history with respect to whistleblowers. While some commentators pillory Edward Snowden, some privacy rights advocates praise his actions. Perhaps reflecting these conflicting sentiments, current protections in the U.S. are a patchwork collection of industry-specific legislation. The current slate of legislation is largely the result of the confluence of recurring waves of media publicity exposing government fraud, the growth in government spending and involvement, and Congress’s attempts to respond to adverse publicity concerning government fraud. The succession of public crises running from Watergate to the wasteful spending in the Iraq War, to the collapse of the financial and securities industries have demonstrated that the government needs whistleblowers to help expose fraud and waste. As successive legislative attempts to extend whistleblower protections have demonstrated, reform “is usually precipitated by some crisis or new political movement that disrupts the preexisting status quo.”Item Procedural Economy in Pre-trial Procedure: Developments in Germany and the United States(2016) Boyne, Shawn Marie; Robert H. McKinley School of LawIn this article, I compare pre-trial procedures in Germany and the United States and probe the extent to which prosecutor’s decision-making practices deviate from each system’s normative goals. In both countries, the daily practice of the key players in both criminal justice systems continues to shift as the result of ever-increasing resource constraints and a varied array of organizational incentives. These shifts have created areas of both convergence and divergence. On the one-hand, in an era in both countries in which the number of cases resolved through a full-fledged public trial is decreasing, the course of pre-trial practice has become more outcome-determinative. Faced with a heavy caseload, a German prosecutor who receives a file in which the initial facts appear to be weak, may dismiss the case right out of the gate. On the other hand, carrying the mantle of a “party” rather than as an “organ of justice,” an American prosecutor who views the same investigation file may be more likely to seek some level of conviction through a plea agreement. Viewed solely through the goal of “finding the truth,” the shortened investigation process in both cases raises questions about whether the outcome fulfilled the retributive and rehabilitative objectives of the criminal law. On the other hand, in an era of tight resources, both outcomes appear to efficiently resolve the dispute at issue. In both cases, the shortened process also impacts, and perhaps undercuts, the traditional role of the fact-finder, be it a jury in the United States or a German judicial panel. Consequently, in many cases, bureaucrats in both countries are functioning as the arbiters of justice rather than simply as the head of the investigation process. This shift in institutional roles casts doubt on the degree to which the normative vision underlying each system’s path to “truth” informs prosecutors’ practice routines. By highlighting this development, this chapter will explore the widening disconnect between the law in action and these two normative visions of the truth-finding process. I then describe how some facets of pre-trial practice in both in both countries today undermine the objective to find the truth. After highlighting these problematic features, I suggest that the way to right the ship is, not to strengthen the law, but to more closely examine the organizational incentives that guide prosecutorial decision-making today.Item Prosecutorial Accountability in the Rechtsstaat: The Tension between Law, Politics, and the Public Interest(2016) Boyne, Shawn MarieDuring the past two decades, scholars, politicians, and legal practitioners in the United States have criticized American prosecutors for adopting a “conviction mentality” that diverges from their ethical duty to pursue justice. Most notably, critics have alleged and, in some cases shown, that prosecutors have suppressed exculpatory evidence, applied the law selectively, used their sentencing leverage to force plea bargains, and have helped fuel America’s incarceration epidemic. These criticisms locate the origin of these problems in prosecutors’ lack of accountability, the inefficiency of elections, non-transparent decision-making processes, and prosecutors’ desire for political gain. In contrast to this robust criticism of American prosecutors, the German prosecution service is not under fire. This lack of criticism is due to several striking differences not only between the institutional role played prosecutors in both countries, but also between each state’s vision of governance, democratic accountability, and the law itself. Perhaps, most tellingly, it has been the German judges and the prosecutors themselves have launched the most visible calls for reform. service. Moreover, the reformers aim not to make prosecutors more accountable, but rather to increase their political independence. The divergent directions of these calls for reform in Germany and the U.S. contradicts the narrative that, despite differences between the adversarial and inquisitorial traditions, there are significant points of convergence between prosecutorial practices in both countries. To cite one example, although Germany was once hailed as the land without plea-bargaining, today “confession-bargaining” is used to settle a rising percentage of criminal cases. The existence of these superficial similarities, however, obscures deeper and more durable differences between the two systems. These differences are not fully captured by analyses that argue that adversarial systems are becoming more inquisitorial and inquisitorial systems have adopted some adversarial procedures. Although a significant body of scholarship in the field of comparative criminal procedure has focused on the functional, normative, and institutional differences between adversarial and inquisitorial systems, this chapter aims to break new ground by exploring the tension between democratic accountability and independence that undergirds the institutional position of German prosecution offices within an inquisitorial framework.Item Translating Civil Law 'Objectivity' with an Adversarial Brain: An Ethnographic Prspective(2014) Boyne, Shawn Marie; Robert H. McKinley School of LawThe act of translation encompasses more than the transfer of linguistic meaning. It also involves the transfer of larger cultural and epistemological meanings (Wolf, 2011). When legal texts are the object of translation, the process includes the “mechanism of the law” (Šarčević 2000:1). The role of a linguist and translation theory in this process is contested (Harvey 2002) as some scholars have argued that legal texts possess a unique communicative function often overlooked by linguists (Šarčević 2012:189). While legal scholars have questioned linguists’ claims to participate the law related interpretation process, this chapter sidesteps that debate (Poirier 1995: 1034). Instead I address the problems of subjectivity and interpretation that legal scholars themselves face as they attempt to analyze the role that law plays on unfamiliar turf. I identify and detail two challenges embedded in comparative legal jurisprudence. One stems the pitfalls that legal scholars encounter when they rely on legal texts as a source of understanding rather than investigating how the law actually functions on the ground. The second stems from the comparative legal scholar’s subjectivity. In the field of comparative law, these "translation" errors as well as problems of subjectivity colored English-language scholarship regarding the objectivity of German prosecutors for several decades. I show how scholars' use of German codes as a proxy for German practice led scholars to claim that the German criminal justice system effectively controlled prosecutorial discretion. While new scholarship on German plea bargaining practices attempts to destroy the myth of limited discretion, it misses the role that organizational culture and training play in shaping decision-making processes. Drawing from my fieldwork in Germany, I use examples from my own experience to show the dangers of researcher subjectivity. The paper concludes with a call for further comparative research that goes beyond am examination of foreign texts and explores foreign legal practices.Item Whistleblowing(American Journal of Comparative Law, 2014-07) Boyne, Shawn Marie; Robert H. McKinney School of LawAlthough efforts to encourage whistleblowers in the United States to come forward date back to 1778, the country's treatment of whistleblowers has been a conflicted one. Most recently, this reluctance to brand whistleblowers as heroes may be seen in the wide range of responses to Edward Snowden's revelations about the extent of our own government's surveillance operations. While some commentators have pilloried Snowden and branded him a traitor, privacy advocates and foreign governments have praised his courage. Perhaps reflecting these conflicting sentiments, current protections in the U.S. are a patchwork collection of narrowly tailored, industry-specific legislative acts. In some cases, legislatures have implemented protections on the heels of public disclosures of industry fraud. To an increasingly extent however, lawmakers have anticipated the need for whistleblower protections with the enactment of new federal spending initiatives. This paper outlines the expansion of whistleblower protections and highlights the proliferation of protections that award whistleblowers a substantial monetary reward.