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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: 23 September 2021

Removing Prosecutors from the Boardroom

Removing Prosecutors from the Boardroom

Limiting Prosecutorial Discretion to Impose Structural Reforms

(p.62) 3 Removing Prosecutors from the Boardroom
Prosecutors in the Boardroom

Jennifer Arlen

NYU Press

This chapter argues that prosecutors can effectively deter corporate crimes if they are given the combined power to prosecute firms for their employees' corporate crimes and the power to offer leniency to firms that monitor effectively, report misconduct, and cooperate. It begins with an overview of U.S. practice governing corporate liability and the wisdom of granting prosecutors authority to regulate corporate governance. It then considers the traditional U.S. approach to corporate criminal liability and explains why the Department of Justice had to abandon it in order to adequately deter crime. It also examines how corporate criminal liability evolved to embrace a proactive policy of using nonprosecution to convince corporations to deter crime. It suggests that prosecutors have gone too far in regulating companies and that civil regulatory authorities should exercise the sole authority over mandated corporate governance reforms, including monitoring requirements. Finally, it contends that prosecutors should use prosecution and the threat of prosecution to secure ex post cooperation from firms, instead of nonprosecution agreements or deferred prosecution agreements to induce structural reforms.

Keywords:   prosecutors, corporate crime, corporate governance, corporate criminal liability, nonprosecution, prosecution, nonprosecution agreements, deferred prosecution agreements, structural reforms

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