Prosecutors In the Boardroom: Using Criminal Law to Regulate Corporate Conduct

The Center is proud to announce that New York University Press has published Prosecutors in the Boardroom: Using Criminal Law to Regulate Corporate Conduct, comprised of papers contributed by scholars who participated in the Center's Inaugural Annual Conference, "Regulation By Prosecutors."

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Contributing authors include:

  • Cindy Alexander, Assistant Chief Economist, Securities and Exchange Commission, and Mark Cohen, Vice President for Research and Senior Fellow at Resources for the Future (co-authors)
  • Jennifer Arlen, Norma Z. Paige Professor of Law, New York University School of Law
  • Anthony S. Barkow, Executive Director, Center on the Administration of Criminal 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, Professor of Law, Duke Law School
  • Mariano-Florentino Cuéllar, Professor of Law and Deane F. Johnson Faculty Scholar, Stanford Law School
  • Richard A. Epstein, Laurence A. Tisch Professor of Law, New York University School of Law, Senior Lecturer, University of Chicago Law School, and Peter and Kirsten Bedford Senior Fellow, Hoover Institution
  • Brandon L. Garrett, Professor of Law, Virginia Law School
  • Lisa Kern Griffin, Professor of Law, Duke Law School
  • Vikramaditya S. Khanna, Professor of Law, University of Michigan Law School

Prosecutors in the Boardroom explores the practice in which prosecutors use the threat of criminal prosecution to force companies and even entire industries to change their business models or operations.  In the typical case in this area, prosecutors draft elaborate agreements specifying the terms to which companies must adhere to avoid criminal charges.  A monitor is then put in place to assure compliance.  Companies typically agree to the demands, no matter how onerous, because they would do almost anything to avoid an indictment or conviction that could mean the end of their business.

Regulation of private industry by criminal prosecutors is a growing, but largely overlooked, phenomenon.  The Department of Justice has made increasing use of this tactic, with some of the nation’s largest corporations entering into such agreements.  State prosecutors have similarly pursued regulation by threatening criminal prosecution, in particular New York State Attorney General Andrew Cuomo and former New York Attorney General and Governor Eliot Spitzer.

This practice has been criticized on both sides of the spectrum.  Although the critics may not agree on the merits of the practice itself, everyone who has focused on the topic agrees that regulation by prosecutors is one of the most important developments in modern criminal practice.  This subject has recently received attention by Congress and by the media, as it has been the subject of multiple Congressional hearings and of a front-page article in The New York Times.  Investigations into the recent meltdown of the world economy and into the sub-prime mortgage crisis, and prosecutions arising out of that conduct, promise to keep this issue at the forefront of scholarly and policy debate.

Prosecutors in the Boardroom explores the questions raised by this practice by compiling the insights of the experts who have studied this practice.  It assembles the views of the leading lights in this field, including criminal law professors who specialize in the field of corporate criminal liability and the administration of criminal law, a top economist at the SEC who studies corporate wrongdoing, and the leading experts on the use of monitors in criminal law.  The book’s conclusion compiles the policy and legal prescriptions in the various chapters into a policy blueprint of best practices for federal and state prosecution in this context, assembling the structural and institutional recommendations on which a consensus among contributors emerged and setting forth recommendations of rules and procedures that should govern federal and state prosecutors in the area.  The conclusion also sets forth some questions for future research.

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