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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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Potentially Perverse Effects of Corporate Civil Liability

Potentially Perverse Effects of Corporate Civil Liability

(p.87) 4 Potentially Perverse Effects of Corporate Civil Liability
Prosecutors in the Boardroom

Samuel W. Buell

NYU Press

This chapter examines the potentially adverse effects of corporate civil liability and the role of prosecutors in regulating corporate behavior. After considering the distinction between a criminal enterprise case and a civil regulatory action, it discusses measures necessary to push civil regulatory liability in the direction of criminal liability. It then describes three key actors on the enforcement side of corporate regulation: private actors, criminal prosecutors, and regulatory bodies such as the Securities and Exchange Commission (SEC). It also explores problems that might arise from reforming the civil regulatory action by focusing on the SEC enforcement action. It argues that agencies should have a greater role in corporate regulation and that criminal sanctions are most effective as the cap of a pyramid of enforcement. Finally, it contends that civil enforcement must be augmented to make it more attractive to enforcers and reduce the need for criminal enforcement.

Keywords:   corporate civil liability, prosecutors, corporate behavior, civil regulatory liability, criminal liability, corporate regulation, Securities and Exchange Commission, criminal sanctions, civil enforcement, criminal enforcement

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