Prosecutors in the Boardroom: Using Criminal Law to Regulate Corporate Conduct

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Overview

Who should police corporate misconduct and how should it be policed? In recent years, the Department of Justice has resolved investigations of dozens of Fortune 500 companies via deferred prosecution agreements and non-prosecution agreements, where, instead of facing criminal charges, these companies become regulated by outside agencies. Increasingly, the threat of prosecution and such prosecution agreements is being used to regulate corporate behavior. This practice has been sharply criticized on numerous ...

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Prosecutors in the Boardroom: Using Criminal Law to Regulate Corporate Conduct

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Overview

Who should police corporate misconduct and how should it be policed? In recent years, the Department of Justice has resolved investigations of dozens of Fortune 500 companies via deferred prosecution agreements and non-prosecution agreements, where, instead of facing criminal charges, these companies become regulated by outside agencies. Increasingly, the threat of prosecution and such prosecution agreements is being used to regulate corporate behavior. This practice has been sharply criticized on numerous fronts: agreements are too lenient, there is too little oversight of these agreements, and, perhaps most important, the criminal prosecutors doing the regulating aren't subject to the same checks and balances that civil regulatory agencies are.

Prosecutors in the Boardroom explores the questions raised by this practice by compiling the insights of the leading lights in the field, including criminal law professors who specialize in the field of corporate criminal liability and criminal law, a top economist at the SEC who studies corporate wrongdoing, and a leading expert on the use of monitors in criminal law. The essays in this volume move beyond criticisms of the practice to closely examine exactly how regulation by prosecutors works. Broadly, the contributors consider who should police corporate misconduct and how it should be policed, and in conclusion offer a policy blueprint of best practices for federal and state prosecution.

Contributors: Cindy R. Alexander, Jennifer Arlen, Anthony S. Barkow, Rachel E. Barkow, Sara Sun Beale, Samuel W. Buell, Mark A. Cohen, Mariano-Florentino Cuellar, Richard A. Epstein, Brandon L. Garrett, Lisa Kern Griffin, and Vikramaditya Khanna

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Editorial Reviews

From the Publisher

“A must-read for practitioners and scholars wrestling with the challenges of corporate crime and punishment.”

-James Comey,former Deputy Attorney General of the United States

“An essential collection; the power of prosecutors in a post-Arthur Andersen world demands thoughtful and scholarly attention and gets it in this invaluable volume.”

-Paul Clement,former Solicitor General of the United States

"Prosecutors in the Boardroom...supplies a wealth of empirical data about contemporary corporate law enforcement policy...[and] demonstrates what happens when well-intentioned, intelligent, dedicated law enforcement agents are freed from the constraints of liberalism."-John Hasnas,Regulation

"Prosecutors in the Boardroom...supplies a wealth of empirical data about contemporary corporate law enforcement policy...[and] demonstrates what happens when well-intentioned, intelligent, dedicated law enforcement agents are freed from the constraints of liberalism."-John Hasnas,Regulation

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Product Details

  • ISBN-13: 9780814787038
  • Publisher: New York University Press
  • Publication date: 4/1/2012
  • Pages: 287
  • Sales rank: 1,352,499
  • Product dimensions: 6.00 (w) x 9.00 (h) x 1.10 (d)

Meet the Author


Anthony S. Barkow is a partner in the white collar defense and investigations practice at law firm Jenner & Block. He received the Attorney General’s Award for Exceptional Service, the highest award bestowed in the Justice Department.

Rachel E. Barkow is a professor of law and the faculty director of the Center on the Administration of Criminal Law at NYU School of Law.

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Table of Contents

Acknowledgments ix

Introduction Anthony S. Barkow Rachel E. Barkow 1

1 The Causes of Corporate Crime: An Economic Perspective Cindy R. Alexander Mark A. Cohen 11

2 Deferred Prosecution Agreements on Trial: Lessons from the Law of Unconstitutional Conditions Richard A. Epstein 38

3 Removing Prosecutors from the Boardroom: Limiting Prosecutorial Discretion to Impose Structural Reforms Jennifer Arlen 62

4 Potentially Perverse Effects of Corporate Civil Liability Samuel W. Buell 87

5 Inside-Out Enforcement Lisa Kern Griffin 110

6 The Institutional Logic of Preventive Crime Mariano-Florentino Cuéllar 132

7 Collaborative Organizational Prosecution Brandon L. Garrett 154

8 The Prosecutor as Regulatory Agency Rachel E. Barkow 177

9 What Are the Rules If Everybody Wants to Play? Multiple Federal and State Prosecutors (Acting) as Regulators Sara Sun Beale 202

10 Reforming the Corporate Monitor? Vikramaditya Khanna 226

Conclusion Anthony S. Barkow Rachel E. Barkow 249

Contributors 259

Index 263

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Sort by: Showing all of 3 Customer Reviews

  • Posted April 22, 2011

    This is a really great compilation

    This is a terrific book that explores well interesting and current key issues in corporate prosecution. A great resource.

    1 out of 1 people found this review helpful.

    Was this review helpful? Yes  NoThank you for your feedback.   Report this reviewThank you, this review has been flagged.

  • Anonymous

    Posted April 19, 2011

    Terrific compilation by leading thinkers in the field

    This is a terrific collection, by leading scholars, that analyzes prosecutors' use of the threat or reality of criminal charges to seek changes in corporate behavior. A must-read for those interested in the subject, and a great resource for classes in law or business.

    1 out of 1 people found this review helpful.

    Was this review helpful? Yes  NoThank you for your feedback.   Report this reviewThank you, this review has been flagged.

  • Anonymous

    Posted April 4, 2011

    No text was provided for this review.

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