The Limits of Individual Prosecutions in Deterring Corporate Fraud

78 Pages Posted: 19 Mar 2024 Last revised: 11 Apr 2024

Date Written: February 20, 2024

Abstract

Fifteen years after the largest financial scandal and economic crisis in a century, discussion of the problem of corporate crime too often borders on cliché. Endless calls from Congress, the media, the public, many scholars, and even the Justice Department itself, to recommit, over and over, to locking up more managers and executives to deter corporate wrongdoing portray the problem as relatively straightforward and blame legislative and executive failure of will. Through examination of the litigation record from over 100 prosecutions spanning the period from the 2008 financial crisis to the present, this Article presents evidence that relying on individual prosecutions to deter the most significant corporate crimes, especially those involving fraud in the financial sector, is less promising than believed. Structural features of crimes in the largest corporate organizations have made securing individual convictions and imprisonment, especially at senior levels, a chancy project for prosecutors. The Article further argues that its evidence relating both to failure rates and causes of those failures should point policymakers and enforcers beyond hackneyed calls for perp walks and prison and towards deeper thinking about a full suite of preventive tools, especially regulatory design.

Keywords: Corporate Crime, White Collar Crime, Corporate Regulation, Securities Law

Suggested Citation

Buell, Samuel W., The Limits of Individual Prosecutions in Deterring Corporate Fraud (February 20, 2024). Wake Forest Law Review, Vol. 59, No. 3, 2024, Duke Law School Public Law & Legal Theory Series No. 2024-19, Available at SSRN: https://ssrn.com/abstract=4733141

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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