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Potentially Perverse Effects of Corporate Civil Liability

PROSECUTORS IN THE BOARDROOM: USING CRIMINAL LAW TO REGULATE CORPORATE CONDUCT, Anthony S. Barkow, Rachel E. Barkow, eds., NYU Press, 2011

24 Pages Posted: 8 Dec 2011  

Samuel W. Buell

Duke University School of Law

Date Written: December 8, 2011

Abstract

Inadequate civil regulatory liability can be an incentive for public enforcers to pursue criminal cases against firms. This incentive is undesirable in a scheme with overlapping forms of liability that is meant to treat most cases of wrongdoing civilly and to reserve the criminal remedy for the few most serious institutional delicts. This effect appears to exist in the current scheme of liability for securities law violations, and may be present in other regulatory structures as well. In this chapter for a volume on "Prosecutors in the Boardroom," I argue that enhancements of the SEC's enforcement processes likely would reduce the frequency of DOJ criminal enforcement against firms, an objective shared by many. Among other enforcement features, I address problems with the practice of accepting "neither admit nor deny" settlements in enforcement actions, a subject that has drawn greater attention since this chapter was published.

Keywords: Corporate Crime, Securities Regulation, Corporate Governance, Federal Criminal Law, Regulatory Enforcement

Suggested Citation

Buell, Samuel W., Potentially Perverse Effects of Corporate Civil Liability (December 8, 2011). PROSECUTORS IN THE BOARDROOM: USING CRIMINAL LAW TO REGULATE CORPORATE CONDUCT, Anthony S. Barkow, Rachel E. Barkow, eds., NYU Press, 2011. Available at SSRN: https://ssrn.com/abstract=1969836

Samuel W. Buell (Contact Author)

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States
919-613-7193 (Phone)

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