Potentially Perverse Effects of Corporate Civil Liability

Authors

Samuel W. Buell, Duke Law SchoolFollow

Document Type

Chapter of Book

Publication Date

2011

Keywords

corporate liability, securities regulation, corporate crime, corporate governance

Abstract

Inadequate civil regulatory liability can be an incentive for public enforcers to pursue criminal cases against firms. This incentive is undesirable in a scheme with overlapping forms of liability that is meant to treat most cases of wrongdoing civilly and to reserve the criminal remedy for the few most serious institutional delicts. This effect appears to exist in the current scheme of liability for securities law violations, and may be present in other regulatory structures as well. In this chapter for a volume on "Prosecutors in the Boardroom," the author argues that enhancements of the SEC's enforcement processes likely would reduce the frequency of DOJ criminal enforcement against firms, an objective shared by many. Among other enforcement features, the author addresses problems with the practice of accepting "neither admit nor deny" settlements in enforcement actions, a subject that has drawn greater attention since this chapter was published.

Citation

Samuel W. Buell, Potentially Perverse Effects of Corporate Civil Liability, in Prosecutors In The Boardroom: Using Criminal Law To Regulate Corporate Conduct 87-109 (Anthony S. Barkow & Rachel E. Barkow eds., 2011)