Parallel Enforcement and Agency Interdependence

Abstract

Parallel civil and criminal enforcement dominates public enforcement of everything from securities regulation to immigration control. The scholarship, however, lacks any structural analysis of how parallel enforcement differs from other types of interagency coordination. Drawing on original interviews with prosecutors, regulators, and white-collar defense attorneys, this Article is the first to provide a realistic presentation of how parallel enforcement works in practice. It builds on this descriptive account to offer an explanatory theory of the pressures and incentives that shape parallel enforcement. The Article shows that, in parallel proceedings, criminal prosecutors lack the gatekeeping monopoly that traditionally defines their relationships with investigating agents. This constitutive feature of parallel proceedings explains many of the institutional design choices that shape our regimes of overlapping civil and criminal enforcement.

Keywords: parallel enforcement, civil/criminal Divide, institutional design, securities litigation, white collar, parallel proceedings, DOJ, CFTC, SEC