Professor Kelly Strader on the Milberg Weiss Prosecutions

Professor Kelly Strader of Southwestern Law School has published his article, White Collar Crime and Punishment: Reflections on Michael, Martha, and Milberg Weiss, 15 George Mason L. Rev. 45 (2007).  The article discusses allegations that certain Milberg partners paid class representatives.  Here’s the abstract from the SSRN post of the article:

We are deeply conflicted about whitecollar crime and punishment. This conflict is largely born of thegovernment’s use of novel, “gray-area” legal theories in many highprofile white collar prosecutions. Such prosecutions, which seek toexpand the scope of existing crimes, tend to undermine the integrityand expressive function of our system of white collar criminalization.These prosecutions also may violate the defendants’ right to fairnotice of the possible crimes with which they may be charged. We need anew approach. First, in such “gray-area” cases, we should rely uponcivil and administrative remedies except in extraordinarycircumstances. Second, we should assess whether extraordinarycircumstances exist by examining whether the defendant’s alleged actscaused substantial, identifiable harm. To test this approach, I examinethree of the most significant economic fraud investigations andprosecutions of the last 20 years – those of Michael Milken, MarthaStewart, and the Milberg Weiss law firm. I conclude that none of thecases warranted criminal prosecution on “gray-area” economic fraudtheories, and that assertion of those theories actually served toundermine our confidence in white collar criminalization and punishment.

BGS