Public Enforcement: Criminal versus Civil
Draft chapter, Oxford Handbook of Corporate Law and Governance (J. Gordon and G. Ringe eds.), Oxford University Press, Forthcoming
14 Pages Posted: 6 Dec 2014
Date Written: December 4, 2014
This chapter explores the distinction between civil and criminal public enforcement of corporate laws and standards. It explains the main normative arguments relevant to the choice between civil and criminal enforcement, first generally and then as applied to the corporate law context specifically. It also examines actual corporate law enforcement patterns in the United States and abroad. While enforcement patterns vis-à-vis individual defendants hew closely to the theoretical ideal, there is substantial variation in countries’ use of corporate criminal liability, with some countries (most notably the United States) pursuing policies that are difficult to defend theoretically.
Keywords: enforcement, public, private, civil, criminal, corporate law, deferred prosecution, non-prosecution, institutional design, derivative litigation, respondeat superior, vicarious liability, corporate criminal
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