The Law of Corporate Investigations and the Global Expansion of Corporate Criminal Enforcement

64 Pages Posted: 31 Oct 2019 Last revised: 13 Nov 2019

See all articles by Jennifer Arlen

Jennifer Arlen

New York University School of Law

Samuel W. Buell

Duke University School of Law

Date Written: October 30, 2019

Abstract

The United States model of corporate crime control, developed over the last two decades, couples a broad rule of corporate criminal liability with a practice of reducing sanctions, and often withholding conviction, for firms that assist enforcement authorities by detecting, reporting, and helping prove criminal violations. This model, while subject to skepticism and critiques, has attracted interest among reformers in overseas nations that have sought to increase the frequency and size of their enforcement actions. In both the U.S. and abroad, insufficient attention has been paid to how laws controlling the conduct of corporate investigations are critical to regimes of corporate criminal liability and public enforcement. Doctrines governing self-incrimination, employee rights, data privacy, and legal privilege, among other areas, largely determine the relative powers of governments and corporations to collect and use evidence of business crime, and thus the incentives of enforcers to offer settlements that reward firms for private efforts to both prevent and disclose employee misconduct. This Article demonstrates the central role that the law controlling corporate investigations plays in determining the effects of corporate criminal liability and enforcement policies. It argues that discussions underway in Europe and elsewhere about expanding both corporate criminal liability and settlement policies—as well as conversations about changes to the U.S. system—must account for the effects of differences in investigative law if effective incentives for reducing corporate crime are, as they should be, a principal goal.

Keywords: corporate crime, criminal procedure, business crime, compliance

Suggested Citation

Arlen, Jennifer and Buell, Samuel W., The Law of Corporate Investigations and the Global Expansion of Corporate Criminal Enforcement (October 30, 2019). University of Southern California Law Review (vol. 93, 2020, Forthcoming); NYU School of Law, Public Law Research Paper No. 19-43; NYU Law and Economics Research Paper No. 19-40; Duke Law School Public Law & Legal Theory Series No. 2019-69. Available at SSRN: https://ssrn.com/abstract=3478298

Jennifer Arlen

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

HOME PAGE: http://https://its.law.nyu.edu/facultyprofiles/profile.cfm?personID=20658

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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