Full Description
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
Contents
Acknowledgments Introduction Anthony S. Barkow and Rachel E. Barkow 1 The Causes of Corporate Crime: An Economic Perspective Cindy R. Alexander and Mark A. Cohen 2 Deferred Prosecution Agreements on Trial: Lessons from the Law of Unconstitutional Conditions Richard A. Epstein 3 Removing Prosecutors from the Boardroom: Limiting Prosecutorial Discretion to Impose Structural Reforms Jennifer Arlen 4 Potentially Perverse Effects of Corporate Civil Liability Samuel W. Buell 5 Inside-Out Enforcement Lisa Kern Griffin 6 The Institutional Logic of Preventive Crime Mariano-Florentino Cuellar 7 Collaborative Organizational Prosecution Brandon L. Garrett 8 The Prosecutor as Regulatory Agency Rachel E. Barkow 9 What Are the Rules If Everybody Wants to Play? Multiple Federal and State Prosecutors (Acting) as Regulators Sara Sun Beale 10 Reforming the Corporate Monitor? Vikramaditya Khanna Conclusion Anthony S. Barkow and Rachel E. Barkow Contributors Index
