Center on the Administration of Criminal Law

Regulation By Prosecutors

The Center's first major annual conference, "Regulation By Prosecutors," focused on the regulation of private industry by criminal prosecutors.

The conference was held on May 8, 2009, at New York University School of Law. More than 300 people attended the all-day event.

See the conference schedule.

Read about the book published out of the event, and buy it here.

View video from the conference.

James B. Comey, former Deputy Attorney General of the United States, and Mary Jo White, former United States Attorney for the Southern District of New York, were panelists

Participating practioners included:

 

  • James B. Comey, former Deputy Attorney General of the United States and United States Attorney for the Southern District of New York, and current General Counsel and Senior Vice President at Lockheed Martin
  • Eric Corngold, Executive Deputy Attorney General for Economic Justice, Office of the New York Attorney General
  • Ronald Goldstock, New York State Commissioner of the Waterfront Commission of New York Harbor and Independent Private Sector Inspector General
  • Michele Hirshman, Partner, Paul, Weiss, Rifkind, Wharton & Garrison, and former First Deputy Attorney General for the State of New York, Office of the New York Attorney General
  • The Honorable Raymond J. Lohier Jr., now United States Circuit Judge, United States Circuit Court for the Second Circuit, and at the time the Deputy Chief of Securities and Commodities Task Force, United States Attorney's Office for the Southern District of New York
  • The Honorable Frank Pallone Jr., United States Representative, New Jersey (6th District)
  • The Honorable Bill Pascrell Jr., United States Representative, New Jersey (8th District)
  • Mark K. Schonfeld, Partner, Gibson Dunn & Crutcher, and former Director, New York Regional Office, Securities and Exchange Commission
  • Gil M. Soffer, Partner, Katten Muchin Rosenman, and former Associate Deputy Attorney General, United States Department of Justice
  • The Honorable Richard J. Sullivan, United States District Judge on the United States District Court for the Southern District of New York and former General Counsel for Marsh Inc.
  • Theodore V. Wells Jr., Partner, Paul, Weiss, Rifkind, Wharton & Garrison
  • Mary Jo White, Partner, Debevoise & Plimpton, and former United States Attorney for the Southern District of New York
  • Debra Wong Yang, Partner, Gibson Dunn & Crutcher, and former United States Attorney for the Central District of California

Professor Richard A. Epstein was a panelist

Participating scholars included:

  • Cindy Alexander, Assistant Chief Economist, Securities and Exchange Commission
  • Jennifer Arlen, Norma Z. Paige Professor of Law, New York University School of Law
  • Rachel Barkow, Professor of Law, New York University School of Law, and Faculty Director, Center on the Administration of Criminal Law
  • Sara Sun Beale, Charles L.B. Lowndes Professor of Law, Duke Law School
  • Samuel Buell, Associate Professor of Law, Washington University School of Law
  • Mark Cohen, Vice President for Research and Senior Fellow at Resources for the Future
  • Mariano-Florentino Cuéllar, Professor of Law and Deane F. Johnson Faculty Scholar, Stanford Law School
  • Richard A. Epstein, James Parker Hall Distinguished Service Professor of Law and Director, Law and Economics Program, University of Chicago School of Law
  • Harry First, Charles L. Denison Professor of Law, NYU School of Law
  • Brandon L. Garrett, Associate Professor of Law, Virginia Law School
  • Lisa Kern Griffin, Professor of Law, Duke Law School
  • James Jacobs, Chief Justice Warren E. Burger Professor of Constitutional Law and the Courts, New York University School of Law
  • Vikramaditya S. Khanna, Professor of Law, University of Michigan Law School
  • Kate Stith, Acting Dean and Lafayette S. Foster Professor of Law, Yale Law School

 

"Regulation By Prosecutors" includes demands by prosecutors that companies engage in particular affirmative acts to avoid prosecution.

It also includes the use of deferred prosecution agreements, which the Department of Justice has increasingly employed in the investigation of corporate crime. Such agreements include detailed requirements that companies must satisfy and have been used in cases involving KPMG, Merrill Lynch, and Bristol Myers-Squibb. These regulatory agreements are used as an alternative to an indictment or a decision not to bring charges at all. Deferred prosecution agreements have recently received scrutiny, including being the subject of two House Judiciary Committee hearings and a front-page article in The New York Times. "Regulation By Prosecutors" explored this growing phenomenon of prosecutor-induced regulationa phenomenon that calls out for research and analysisby bringing together scholars, prosecutors, defense lawyers, and industry leaders to identify the costs and benefits of this practice and to propose solutions to the leading problems associated with it.

 

Some of the main topics addressed at the conference included:

  • the relationship between criminal prosecution and civil enforcement (e.g, when criminal prosecution should replace civil enforcement, whether a recommendation from regulatory agencies like the SEC should be a prerequisite)
  • whether private class actions are sufficient to regulate companies if and when deferred prosecution agreements are appropriate tools in this context
  • which prosecuting authority (federal v. state) is in the best position to make judgments about what should be done to reform private industry
  • how prosecutors can and should set the terms for private industry
  • how prosecutors can monitor compliance with their agreements and remedial orders and an assessment of the success or failure of this practice