Follow-Up Enforcement

61 Pages Posted: 7 May 2020 Last revised: 5 Apr 2021

See all articles by Andrew Jennings

Andrew Jennings

Brooklyn Law School; Stanford Law School

Date Written: April 8, 2020

Abstract

Firms sometimes break the law. When they do, a host of government agencies have power to bring enforcement actions against them, actions that serve to punish past wrongs, compensate victims, disgorge unlawful gains, deter others, and prevent recidivism. Each of these purposes but one — preventing recidivism — is either met or not once the case reaches settlement. Whether recidivism will occur, however, remains uncertain at the time a case is settled. In light of that uncertainty, this Article takes a hard look at how enforcers currently address recidivism prevention — what it dubs the “clawback” approach — under which defendant firms receive penalty credit today in exchange for remedial efforts that, it is hoped, will prevent recidivism tomorrow. This Article examines the incentives and constraints of the two parties — the enforcer and the firm — and concludes that an alternative “follow-up” approach that credits only firms’ demonstrated results would be more efficacious and efficient at recidivism prevention.

Keywords: corporate crime, corporate enforcement, compliance, white-collar crime

Suggested Citation

Jennings, Andrew, Follow-Up Enforcement (April 8, 2020). 70 Duke Law Journal 1569 (2021), Available at SSRN: https://ssrn.com/abstract=3571049

Andrew Jennings (Contact Author)

Brooklyn Law School ( email )

250 Joralemon Street
Brooklyn, NY 11201
United States

HOME PAGE: http://andrewkjennings.com

Stanford Law School ( email )

559 Nathan Abbott Way
Stanford, CA 94305

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