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Commercial crimes

Criminal Law

Duke Law

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Full-Text Articles in Law

The Law Of Corporate Investigations And The Global Expansion Of Corporate Criminal Enforcement, Jennifer Arlen, Samuel W. Buell Jan 2020

The Law Of Corporate Investigations And The Global Expansion Of Corporate Criminal Enforcement, Jennifer Arlen, Samuel W. Buell

Faculty Scholarship

The United States model of corporate crime control, developed over the last two decades, couples a broad rule of corporate criminal liability with a practice of reducing sanctions, and often withholding conviction, for firms that assist enforcement authorities by detecting, reporting, and helping prove criminal violations. This model, while subject to skepticism and critiques, has attracted interest among reformers in overseas nations that have sought to increase the frequency and size of their enforcement actions. In both the U.S. and abroad, insufficient attention has been paid to how laws controlling the conduct of corporate investigations are critical to regimes of …


Declining Corporate Prosecutions, Brandon L. Garrett Jan 2020

Declining Corporate Prosecutions, Brandon L. Garrett

Faculty Scholarship

In the aftermath of the Global Financial Crisis, people across the United States protested that "too big to jail" banks were not held accountable after the financial crisis. Little has changed. Newly collected data concerning enforcement during the Trump Administration has made it possible to assess what impact a se­ries of new policies has had on corporate enforcement. To provide a snapshot comparison, in its last twenty months, the Obama Administration levied $I4.15 billion in total corporate penalties by prosecuting seventy-one financial institu­tions and thirty-four public companies. During the first twenty months of the Trump Administration, corporate penalties declined to …


Why Do Prosecutors Say Anything? The Case Of Corporate Crime, Samuel W. Buell Jan 2018

Why Do Prosecutors Say Anything? The Case Of Corporate Crime, Samuel W. Buell

Faculty Scholarship

Criminal procedure law does not require prosecutors to speak outside of court. Professional regulations and norms discourage and sometimes prohibit prosecutors from doing so. Litigation often rewards strategic and tactical maintenance of the element of surprise. Institutional incentives encourage bureaucrats, especially those not bound by procedural requirements of administrative law, to decline to commit themselves to future action. In the always exceptional field of corporate crime, however, the Department of Justice and federal line prosecutors have developed practices of signaling and describing their exercise of discretion through detailed press releases, case filings, and policy documents. This contribution to a symposium …


The Responsibility Gap In Corporate Crime, Samuel W. Buell Jan 2017

The Responsibility Gap In Corporate Crime, Samuel W. Buell

Faculty Scholarship

In many cases of criminality within large corporations, senior management does not commit the operative offense — or conspire or assist in it — but nonetheless bears serious responsibility for the crime. That responsibility can derive from, among other things, management’s role in cultivating corporate culture, in failing to police effectively within the firm, and in accepting lavish compensation for taking the firm’s reins. Criminal law does not include any doctrinal means for transposing that form of responsibility into punishment. Arguments for expanding doctrine — including broadening of the presently narrow “responsible corporate officer” doctrine — so as to authorize …


Somebody's Watching Me: Fcpa Monitorships And How They Can Work Better, F. Joseph Warin, Michael S. Diamant, Veronica S. Root Jan 2011

Somebody's Watching Me: Fcpa Monitorships And How They Can Work Better, F. Joseph Warin, Michael S. Diamant, Veronica S. Root

Faculty Scholarship

This article explores the rise of the corporate compliance monitor as a condition for settling violations of the U.S. Foreign Corrupt Practices Act (“FCPA”) — a setting in which federal prosecutors routinely impose monitors. If U.S. enforcement authorities maintain their current approach, the reality is that companies facing liability for violating the FCPA are likely to have a monitor imposed on them as part of a settlement agreement. From the U.S. government’s perspective, monitorships make sense for companies that violate anti-bribery laws, making it important for offending corporations to learn how to deal with monitors. Pulling from the authors’ extensive …