Governing Corporate Compliance

Boston College Law Review, Vol. 50, No. 1, 2009

Brooklyn Law School, Legal Studies Paper No. 166

72 Pages Posted: 16 Sep 2009 Last revised: 24 Sep 2009

Miriam H. Baer

Brooklyn Law School

Date Written: September 16, 2009

Abstract

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.

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

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: https://ssrn.com/abstract=1474291

Miriam H. Baer (Contact Author)

Brooklyn Law School ( email )

250 Joralemon Street
Brooklyn, NY 11201
United States

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