Mark Fenwick | Lex Research Topics in Corporate Law & Economics
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 corporate criminal liability and public enforcement. Doctrines governing self-incrimination, employee rights, data privacy, and legal privilege, among other areas, largely determine the relative powers of governments and corporations to collect and use evidence of business crime, and thus the incentives of enforcers to offer settlements that reward firms for private efforts to both prevent and disclose employee misconduct. This Article demonstrates the central role that the law controlling corporate investigations plays in determining the effects of corporate criminal liability and enforcement policies. It argues that discussions underway in Europe and elsewhere about expanding both corporate criminal liability and settlement policies—as well as conversations about changes to the U.S. system—must account for the effects of differences in investigative law if effective incentives for reducing corporate crime are, as they should be, a principal goal.