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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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The Prosecutor as Regulatory Agency

The Prosecutor as Regulatory Agency

(p.177) 8 The Prosecutor as Regulatory Agency
Prosecutors in the Boardroom

Rachel E. Barkow

NYU Press

This chapter examines the capacity of both state attorney generals and federal prosecutors to act as regulators based on democratic accountability, institutional competence, and procedural reliability. It first considers the factors that give prosecutors the ability to assume a regulatory role and goes on to discuss corporate regulation by prosecutors. It then compares prosecutors and traditional regulators in terms of accountability and shows that nonprosecution agreements, deferred prosecution agreements, and settlement agreements often decide complex questions of how businesses should operate. It also asks whether prosecutors can make efficient decisions in the business context and whether regulatory agencies possess greater institutional competence than prosecutors. The chapter concludes by assessing the procedural reliability of prosecutorial regulation.

Keywords:   state attorney general, federal prosecutors, democratic accountability, institutional competence, procedural reliability, corporate regulation, nonprosecution agreements, deferred prosecution agreements, settlement agreements, regulatory agencies

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