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Governing Corporate Compliance

Miriam H. Baer

Brooklyn Law School

September 16, 2009

Boston College Law Review, Vol. 50, No. 1, 2009
Brooklyn Law School, Legal Studies Paper No. 166

In light of the financial meltdown of 2008, it is reasonable to question whether the prior decade’s emphasis on corporate compliance - the internal programs that corporations adopt in order to educate employees, improve ethical norms, and detect and prevent violations of law - has been fruitful. This Article contends that the key problem with compliance is that we regulate it through an adversarial system that pits federal prosecutors against corporate defense counsel, fueling distrust between corporate entities and the government, and between the corporate employees and the internal monitors tasked with ensuring compliance. Despite this adversarial atmosphere, a number of scholars have suggested that corporate compliance is an example of a more collaborative regulatory approach known as “New Governance.” This Article challenges that notion, arguing that the government’s adversarial stance all but eliminates the experimental and collaborative approach championed by the New Governance movement. The Article further concludes that a New Governance model of compliance regulation is unlikely to take hold. Nevertheless, policymakers should consider New Governance’s administrative stance in lieu of the more punitive, “war-driven” approach that adjudication usually encourages.

Number of Pages in PDF File: 72

Keywords: compliance, corporate governance, adversarial, prosecutor, corporate crime, New Governance, adjudication

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Date posted: September 16, 2009 ; Last revised: September 24, 2009

Suggested Citation

Baer, Miriam H., Governing Corporate Compliance (September 16, 2009). Boston College Law Review, Vol. 50, No. 1, 2009; Brooklyn Law School, Legal Studies Paper No. 166. Available at SSRN: http://ssrn.com/abstract=1474291

Contact Information

Miriam H. Baer (Contact Author)
Brooklyn Law School ( email )
250 Joralemon Street
Brooklyn, NY 11201
United States

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