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OF CRIMINAL LAW Published at the University of Texas School of Law AMERICAN JOURNAL OF CRIMINAL LAW Published at The University of Texas School of Law ARTICLES Answer Self-Incriminating Questions or Be Fired Peter Westen Bottom-Up: An Alternative Approach for Investigating Corporate Malfeasance Susan B. Heyman NOTE Just (Juvenile Justice) Jargon: An Argument for Terminological Uniformity Between the Juvenile and Criminal Justice Systems Michael J. Ritter VOLUME 37 SPRING 2010 NUMBER 2 t 4 e p AMERICAN JOURNAL OF CRIMINAL LAW VOLUME 37 SPRING 2010 NUMBER 2 1 Published at The University of Texas School of Law Copyright AMERICAN JOURNAL OF CRIMINAL LAW 2010 i AMERICAN JOURNAL OF CRIMINAL LAW Published at The University of Texas School of Law VOLUME 37 KRISTINA GLITHERO Editor-in-Chief LAUREN WEISER JON REIDY Managing Editor ChiefArticles Editor CORT THOMAS Editor at Large EMILY TRAVIS ALAN HAYES Chief Manuscript Editor JONAH JACKSON CATHERINE STANFORD DUSTIN FARAHNAK GEORGE VALLAS JONATHAN CHALTAIN Manuscript Editors Text & Technical Editors Staff Nicole Anchondo Michael Gramer Ashlie Newman Jessica Bernstein Alden Harris Samuel Rettew Tyler Bexley Brandon Holder Mike Stephens Ryan Bownds Stephanie Hunter Alec Swafford Sara Ann Brown Matt Lloyd Michael Vitris Joel Bryant Daniel Lord James Wang Benjamin Campagna Katy Lukaszewski Mark Wiles Jason Cordova Kristin Malone J.T. Williams Steve Cuff Brenna McGee Laura Wood Sarah Freier-Miller Mynah Melton Amanda Woog Andrew Eichner Madhavi Menon Joyce Young Colin Gaffney ii AMERICAN JOURNAL OF CRIMINAL LAW Published at The University of Texas School of Law VOLUME 38 GEORGE VALLAS Editor-in-Chief KATY LUKASZEWSKI CATHERINE KIRKLAND ManagingEditor ChiefArticles Editor EMILY ROCHY Executive Editor NICOLE ANCHONDO JESSICA BERNSTEIN Chief Manuscript Editor COLIN GAFFNEY MICHAEL GRAMER JONATHAN CHALTAIN BRANDON HOLDER Text & Technical Editor MATT LLOYD LAURA WOOD MYRIAH MELTON Manuscript Editors Editor at Large Staff Ryan Bownds Sarah Freier-Miller Alec Swafford Sara Ann Brown Daniel Lord Andrew Tran Benjamin Campagna Brenna McGee Michael Vitris Andrew Eichner Samuel Rettew Amanda Woog iii SUBSCRIPTIONS The American Journal of Criminal Law (ISSN 0092-2315) is published triannually (Fall, Spring, Summer) under license by The University of Texas School of Law Publications, P.O. Box 8670, Austin, Texas 78713. The annual subscription price is $30.00 except as follows: foreign, $35.00; Texas, $32.48. Please make checks payable to the American Journal of CriminalLaw. Complete sets and single issues are available from William S. Hein & Co., Inc., 1285 Main Street, Buffalo, New York 14209. MANUSCRIPTS The American Journalof Criminal Law is pleased to consider unsolicited manuscripts for publication, but regrets that it cannot return them. One double-spaced, typewritten manuscript should be submitted to the attention of the Chief Articles Editor along with an electronic copy of the article in Microsoft Word format. WordPerfect submissions will not be accepted. Citations should conform to The Bluebook: A Uniform System of Citation (18th ed. 2005). Except when content suggests otherwise, the American Journalof Criminal Law follows the guidelines set forth in the Texas Law Review Manual on Usage, Style & Editing (11th ed. 2006) and the Chicago Manual of Style (15th ed. 2003). The Journal is printed by Joe Christensen, Inc., P.O. Box 81269, Lincoln, Nebraska 68501. Views expressed in the American Journal of Criminal Law are those of the author and do not necessarily reflect the views of the editors or those of the faculty or administration of The University of Texas at Austin. Copyright 2010, The University of Texas School of Law Typeset by the American Journal of CriminalLaw Editorial Offices: American Journal of Criminal Law University of Texas School of Law 727 Dean Keeton St., Austin, TX 78705-3299 Email: [email protected] Website: http://www.ajcl.org Main Office: (512) 471-9200 Circulation Office: Paul Goldman, Business Manager School of Law Publications University of Texas School of Law P.O. Box 8670, Austin, TX 78713 (512) 232-1149 Website: http://www.texaslawpublications.com iv THE UNIVERSITY OF TEXAS SCHOOL OF LAW ADMINISTRATIVE OFFICERS LAWRENCE G. SAGER, B.A., LL.B.: Dean; John Jeffers Research Chair in Law; Alice Jane Drysdale Sheffield Regents Chair. MICHELE DICKERSON, B.A., J.D.: Associate Dean for Academic Affairs; Arthur L. Moller Chair in Bankruptcy Law and Practice. ALEXANDRA W. ALBRIGHT, B.A., J.D.: Associate Dean for Administrative Services; Senior Lecturer. EDEN E. HARRINGTON, B.A., J.D.: Assistant Dean for ClinicalEducation; Director of the William Wayne Justice Centerfor Public Interest Law. KIMBERLY L. BIAR, B.B.A.: Assistant Dean for FinancialAffairs; Certified Public Accountant. CARLA COOPER, B.A., M.A., Ph.D.: Assistant Deanfor Alumni Relations and Development. MICHAEL J. ESPOSITO, B.A., J.D., M.B.A.: Assistant Deanfor Continuing Legal Education. KIRSTON FORTUNE, B.F.A.: Assistant Deanfor Communications. MONICA K. INGRAM, B.A., J.D.: Assistant Dean for Admissions andFinancial Aid. DAVID A. MONTOYA, B.A., J.D.: Assistant Dean for Career Services. LESLIE OSTER, B.A., J.D: Assistant Dean for Strategic Planning. REYMUNDO RAMOS, B.A.: Assistant Dean for Student Affairs. FACULTY EMERITI HANS W. BAADE, A.B., J.D., LL.B., LL.M.: Hugh Lamar Stone Chair Emeritus in Civil Law. RICHARD V. BARNDT, B.S.L., LL.B.: ProfessorEmeritus. WILLIAM W: GIBSON, JR., B.A., LL.B.: Sylvan Lang ProfessorEmeritus in Law of Trusts. ROBERT W. HAMILTON, A.B., J.D.: Minerva House Drysdale Regents Chair Emeritus. DOUGLAS LAYCOCK, B.A., J.D.: Alice McKean Young Regents Chair Emeritus. J. L. LEBOWITZ, A.B., J.D., LL.M.: Joseph C. Hutcheson Professor Emeritus. JOHN T. RATLIFF, JR., B.A., LL.B.: Ben Gardner Sewell Professor Emeritus in Civil TrialAdvocacy. JOHN F. SUTTON, JR., J.D.: A. W Walker Centennial Chair Emeritus. JAMES M. TREECE, B.A., J.D., M.A.: CharlesL FrancisProfessor Emeritus in Law. RUSSELL J. WEINTRAUB, B.A., J.D.: Ben H. & Kitty King Powell Chair Emeritus in Business and Commercial Law. FACULTY JEFFREY B. ABRAMSON, B.A., J.D., Ph.D.; Professor of Law and Government. DAVID E. ADELMAN, B.A., Ph.D., J.D.; Henry Reasoner Regents Chair in Law. WILLIAM P. ALLISON, B.A., J.D.; Clinical Professor;Director, CriminalDefense Clinic. DAVID A. ANDERSON, A.B., J.D.; Fredand Emily Marshall Wulff Centennial Chair in Law. MARK L. ASCHER, B.A., M.A., J.D., LL.M.; Joseph D. Jamail Centennial Chair in Law. RONEN AVRAHAM, M.A., LL.M., J.S.D.; Thomas Shelton Maxey Professor in Law. JEFFREY B. ABRAMSON, B.A., J.D., Ph.D.; Professor of Law and Government. LYNN E. BLAIS, B.A., Honours B.A., J.D.; FrederickM Baron Chair in Law; Co-Director, Center on Lawyers, Civil Justice, and the Media. WILLIAM H. BEARDALL, JR., B.A., J.D.; Clinical Professor;Director, Transnational Workers 'Rights Clinic. MITCHELL N. BERMAN, A.B., M.A., J.D.; Richard Dale Endowed Chair in Law. BERNARD S. BLACK, A.B., M.A., J.D.; Hayden W Head Regents ChairforFaculty Excellence; Director, Center of Law, Business, and Economics. LYNN E. BLAIS, A.B., J.D.; Leroy G. Denman, Jr. Regents Professor in Real Property Law. PHILIP C. BOBBITT, A.B., J.D., Ph.D.; DistinguishedSenior Lecturer. ROBERT G. BONE, B.A., J.D.; Professor. OREN BRACHA, LL.B., S.J.D.; Assistant Professor. KAMELA S. BRIDGES, B.A., B.J., J.D.; Lecturer. DANIEL M. BRINKS, A.B., J.D., Ph.D.; Assistant Professor. CYNTHIA L. BRYANT, B.A., J.D.; Clinical Professor;Director, Mediation Clinic. SARAH M. BUEL, B.A., J.D.; Clinical Professor. NORMA CANTU, B.A., J.D.; Professor of Law and Education. LOFTUS C. CARSON, II, B.S., M. Pub. Aff., M.B.A., J.D.; RonaldD. Krist Professor. ROBERT M. CHESNEY, B.S., J.D.; CharlesI. Francis Professor in Law. MICHAEL J. CHURGIN, A.B., J.D.; Raybourne Thompson Centennial Professor. V JANE M. COHEN, B.A., J.D.; Edward Clark entennial Professor. FRANK B. CROSS, B.A., J.D.; Herbert D. Kelleher Centennial Professor of Business Law. MARY R. CROUTER, A.B., J.D.; Assistant Director, William Wayne Justice Centerfor Public Interest Law. JENS C. DAMMANN, J.D., LL.M., Dr. Jur., J.S.D.; Assistant Professor. JOHN DEIGH, B.A., M.A., Ph.D.; Professorof Law and Philosophy. GEORGE E. DIX, B.A., J.D.; George R. Killam, Jr. Chair of Criminal Law. JUSTIN DRIVER, B.A., M.A., M.A., J.D.; Assistant Professor. LORI DUKE, B.A., J.D.; ClinicalProfessor. ARIEL E. DULITZKY, J.D., LL.M.; Clinical Professor; Director, Human Rights Clinic. JOHN S. DZIENKOWSKI, B.B.A., J.D.; Dean John F. Sutton, Jr. Chair in Lawyering and Legal Process. ZACHARY S. ELKINS, B.A., M.A., Ph.D.; Assistant Professor. KAREN L. ENGLE, B.A., J.D.; Cecil D. Redford Professorin Law; Director, Bernardand Andre Rapoport Centerfor Human Rights and Justice. WILLIAM E. FORBATH, A.B., B.A., Ph.D., J.D.; Lloyd M Bentsen Chair in Law. MIRA GANOR, BA., M.B.A., LL.B., LL.M., J.S.D.; Assistant Professor. JULIUS G. GETMAN, B.A., LL.B., LL.M.; Earl E. Sheffield Regents Chair. DENISE L. GILMAN, B.A., J.D.; ClinicalProfessor. JOHN M. GOLDEN, A.B., J.D., Ph.D.; Assistant Professor. STEVEN GOODE, B.A., J.D.; W James Kronzer Chair in Trial and Appellate Advocacy; University DistinguishedTeaching Professor. LINO A. GRAGILA, B.A., LL.B.; A. Dalton Cross Professor. PATRICIA I. HANSEN, A.B., M.P.A., J.D.; J. Waddy Bullion Professor. BARBARA HINES, B.A., J.D.; Director, Immigration Clinic. HENRY T. Hu, B.S., M.A., J.D.; Allan Shivers Chairin the Law of Banking andFinance. KRISTINE A. HUSKEY, B.A., J.D.; ClinicalProfessor. DEREK P. JINKS, B.A., M.A., J.D.; The Marrs McLean Professorin Law.
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