Marquette University Law School Faculty Blog

Seventh Circuit Week in Review: Corporate Criminal Liability, Reconsideration of Suppression Rulings, and More

Post author:Michael M. O'Hear
Post published:April 11, 2009
Post category:Circuit Splits Criminal Law & Process Federal Criminal Law & Process Federal Sentencing Seventh Circuit

The Seventh Circuit had four new opinions in criminal cases this week. The cases addressed the mens rea requirements for corporate criminal liability, procedural aspects of suppression hearings, child pornography sentencing, and conditional guilty pleas. Taking the cases in that order:

In United States v. L.E. Myers Co. (No. 07-2464), the defendant corporation was convicted of criminal OSHA violations in connection with the electrocution death of one its employees. The Seventh Circuit (per Judge Sykes) reversed and remanded for a new trial in light of erroneous jury instructions. The errors related to mens rea issues. Myers was convicted under a statute that bases liability on the knowing creation of a hazardous condition in knowing violation of an OSHA requirement.

The problem is that a corporation, as a legal construct, cannot really know anything; the only way a corporation knows something is to the extent the law is willing to impute the knowledge of particular employees to the corporation. Seventh Circuit precedent indicated that “corporations ‘know’ what their employees who are responsible for an aspect of the business know.” More specifically, the corporation was said to know what an employee knows if the employee has a duty to report that knowledge to someone higher up in the corporation.

Parlow and Pilon Rumble in Room 325

Post author:Richard M. Esenberg
Post published:April 8, 2009
Post category:Race & Law Speakers at Marquette

Yeah, that doesn’t quite recall the Ali-Foreman fight, but there was still a pretty good conversation between Dr. Roger Pilon and our own Professor Matt Parlow yesterday. Dr. Pilon argued that public sector affirmative action encroached upon libertarian principles (he does not believe that such efforts should be prohibited in the private sector) and the idea of equal protection. Professor Parlow argued for such efforts, emphasizing the need, not only for diversity but, as the Supreme Court has not allowed, to ameliorate the impact of past discrimination. Thanks are in order to the Federalist Society and American Constitution Society for sponsoring the event.

Some Different Thoughts on the Iowa Supreme Court Marriage Decision

Post author:Richard M. Esenberg
Post published:April 8, 2009
Post category:Constitutional Interpretation Family Law

I wanted to respond to Mr. Samis’s thoughtful post on the Iowa marriage case and thought it’d be easier to do so by a separate post than by a comment. It is hard to engage such a complicated and emotionally charged question within the confines of a blog. Although I have generally found both my allies and opponents on the question to be gracious and respectful, I am also aware that this is an issue that can degenerate into dueling allegations of bad faith — of, from one side, accusations of “hate” and “prejudice” and, from the other, charges of “licentiousness” and “irreligion.” I also know that to raise the conservative position in the academy is like launching an offensive deep behind enemy lines. You may soon find yourself surrounded.

But I am finishing (with Daniel Suhr ’08) a paper on interpretation of marriage amendments using Wisconsin as a case study, so the topic is much on my mind.

First, a disclosure. I was a public proponent of Wisconsin’s marriage amendment and based my case on wholly secular grounds without reference to the morality of same-sex relationships. While I appreciate that my church believes such relationships to be morally impermissible, I am not persuaded by that judgment.

Nor do I disagree with Mr. Samis that gay and lesbian relationships, just as heterosexual unions, may — hopefully, will — exhibit the loving and supportive characteristics that he observed between his friends. I have observed the same in my own circles.

But where proponents and opponents of genderless marriage part ways is on the question of whether this resolves the matter. The latter focus not on merely on what may be similar about same-sex and opposite-sex intimacy, but also on what is distinctive.