Faculty Bibliography

Despite significant efforts to uncover and prevent wrongful convictions, little attention has been paid to the compensation of wrongfully convicted individuals once they are released from prison. State compensation statutes offer the best path to redress because they do not require the claimant to prove that the state was at fault for the wrongful conviction and because they are not susceptible to the same political influences as other methods of compensation. However, even under compensation statutes, too many meritorious claims are dismissed, settled for far too little, or never brought in the first place. After examining the current statutory framework, this Article analyzes the arguments for and against one potential solution to this problem that so far has not been considered-shifting the burden of proof to the state on the issue of innocence. Currently, the jurisdictions that have enacted statutes require that the claimant prove his or her innocence in order to recover compensation. Shifting the burden to the state to prove that the claimant is guilty would be more efficient because the state has better access to the relevant evidence, it could rely exclusively on the criminal trial transcript, and it is in a better position to bear the costs of litigation and to determine when to settle. Although this solution implicates several concerns, these concerns can be addressed through checks already built into the criminal justice system and by adjustments that can be made to the compensation statutes.

The antifraud provisions of the U.S. securities laws have remained silent as to their extraterritorial reach since their enactment in the early 1930’s. In the absence of clear Congressional guidance, U.S. courts have struggled to determine when and to what extent there should be subject matter jurisdiction over predominantly foreign claims. Each Circuit that has addressed the issue has adopted some version of the “conduct test” established by the Second Circuit, but no version of this test has been applied consistently or without implicating serious foreign policy concerns. For the first time since the enactment of the securities laws, the Supreme Court has granted certiorari to address this issue. This article addresses the infirmities contained in current versions of the conduct test and concludes that the conduct test should include a reliance requirement that cannot be satisfied through the application of the fraud-on-the-market theory.