Rehabilitating Corporations

Florida Law Review Forum, Vol. 66, 2014

Duke Law School Public Law & Legal Theory Series

3 Pages Posted: 28 Oct 2014 Last revised: 24 Jul 2018

Date Written: October 27, 2014


A central goal of federal prosecutors is to rehabilitate corporations, and not just to fine them. Some of the largest companies now obtain deferred and non-prosecution agreements that permit them to avoid an indictment and a conviction. In deciding not to fully pursue a conviction, prosecutors emphasize how they can secure positive changes to compliance and ethics programs. Such structural reforms implicate corporate governance, and can involve sustained interventions in the workings of a corporation. Lawrence A. Cunningham’s wonderful new article takes the provocative and counterintuitive position that prosecutors should care about rehabilitating corporate governance far more and not less. The fascinating case studies he provides suggest how insufficiently engaging with governance issues can result in a range of failures, from unnecessarily harming a company, to permitting recidivism, to magnifying governance problems or even creating new ones. Until the conflicting tendencies in corporate prosecutors are more firmly resolved, critics will continue to wonder whether the largest companies are treated as “Too Big to Jail.”

Suggested Citation

Garrett, Brandon L., Rehabilitating Corporations (October 27, 2014). Florida Law Review Forum, Vol. 66, 2014. Available at SSRN:

Brandon L. Garrett (Contact Author)

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States
919-613-7090 (Phone)


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