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Prosecutors in the BoardroomUsing Criminal Law to Regulate Corporate Conduct$
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Anthony S. Barkow and Rachel E. Barkow

Print publication date: 2011

Print ISBN-13: 9780814787038

Published to NYU Press Scholarship Online: March 2016

DOI: 10.18574/nyu/9780814787038.001.0001

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PRINTED FROM NYU Press SCHOLARSHIP ONLINE (www.nyu.universitypressscholarship.com). (c) Copyright University of NYU Press Press, 2021. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in NYSO for personal use.date: 16 September 2021

Deferred Prosecution Agreements on Trial

Deferred Prosecution Agreements on Trial

Lessons from the Law of Unconstitutional Conditions

(p.38) 2 Deferred Prosecution Agreements on Trial
Prosecutors in the Boardroom

Richard A. Epstein

NYU Press

This chapter examines the appropriate limit of deferred prosecution agreements (DPAs) in light of the serious dangers in using any principle of corporate criminal liability. It begins with an overview of the so-called “grand inversion” and the role that the Holder, Thompson, and McNulty memos played in exploiting this grand inversion against corporations. It then considers how the unconstitutional conditions doctrine should inform the question of what types of terms should be included in DPAs. It also discusses vicarious criminal liability and the corporate criminal prosecution against the now defunct Arthur Andersen and Co. It argues that the existing standard for corporate crime is too broad and that prosecutors exercise too much power over companies. The chapter concludes with a discussion of terms requiring corporations to take certain positions in political debates over questions of social policy.

Keywords:   deferred prosecution agreements, corporate criminal liability, grand inversion, corporations, unconstitutional conditions doctrine, prosecutors, social policy, vicarious criminal liability, criminal prosecution, corporate crime

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