A New Corporate World Mandates a Good Faith Affirmative Defense

Abstract

In the aftermath of corporate scandals and the establishment of the President's Corporate Fraud Task Force, the Department of Justice has moved with a new emphasis to curb corporate criminality. Congress has also imposed new legislation with stricter compliance and more stringent oversight to curtail corporate criminality. Corporations for the most part have met these new demands and instituted effective compliance programs to prevent and detect criminal conduct. Yet despite these efforts, corporations with the best of motives, with the best of efforts, and with the utmost in due diligence, can still find themselves the subject of a criminal prosecution. This Essay advocates that this new landscape should allow corporations to argue a good faith affirmative defense.

Keywords: white collar crime, criminal law, corporate criminality, corporations, good faith defense

JEL Classification: K14, K22