Cosmetic Compliance and the Failure of Negotiated Governance

59 Pages Posted: 9 Oct 2003 Last revised: 26 Dec 2014

Abstract

Across a range of legal regimes - including environmental, tort, employment discrimination, corporate, securities, and health care law - United States law reduces or eliminates enterprise liability for those organizations that can demonstrate the existence of "effective" internal compliance structures. Presumably, this legal standard rests on an assumption that internal compliance structures reduce the incidence of prohibited conduct within organizations. This Article demonstrates, however, that little evidence exists to support that assumption. In fact, a growing body of evidence indicates that internal compliance structures do not deter prohibited conduct within firms and may largely serve a window-dressing function that provides both market legitimacy and reduced legal liability. This leads to two potential problems: (1) an under-deterrence of corporate misconduct, and (2) a proliferation of costly - but arguably ineffective - internal compliance structures.

The United States legal regime's enthusiastic embrace of internal compliance structures as a liability determinant is consistent with the increasing influence of what are referred to in this Article as "negotiated governance" models that seek to improve government regulation and/or the litigation process through more cooperative governance methods that provide a governance role to the regulated group and other interested parties. Drawing on the incomplete contracts literature, this Article argues that, although the negotiated governance model provides valuable descriptive insights into the mechanisms by which legal rules develop, the model's proponents minimize the dangers of opportunistic behavior during the renegotiation phases of governance (that is, the implementation and enforcement phases) by those with the greatest stake in the meaning of incomplete law - in this case, business organizations and legal compliance professionals, including lawyers.

Keywords: corporations, criminal law, employment law, corporate law, administrative law, legal professionals

JEL Classification: K00, K20, K22, K23, K32, K42

Suggested Citation

Krawiec, Kimberly D., Cosmetic Compliance and the Failure of Negotiated Governance. Washington University Law Review, Vol 81, Issue 2; Harvard Public Law Working Paper No. 85; UNC Public Law Research Paper No. 03-3. Available at SSRN: https://ssrn.com/abstract=448221 or http://dx.doi.org/10.2139/ssrn.448221

Kimberly D. Krawiec (Contact Author)

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States

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