Article | Corporate Law
The Law of Corporate Investigations and the Global Expansion of Corporate Criminal Enforcement
by Jennifer Arlen* & Samuel W. Buell†
From Vol. 93, No. 4 (September 2020)
93 S. Cal. L. Rev. 697 (2020)
Keywords: Corporate Investigations, Corporate Criminal Enforcement
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 United States 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 for 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.
*. Norma Z. Paige Professor of Law, New York University, and Faculty Director, Program on Corporate Compliance and Enforcement, firstname.lastname@example.org.
†. Bernard M. Fishman Professor of Law, Duke University, email@example.com. The authors would like to thank the following people for their thoughtful discussions of foreign law and for comments on earlier drafts of this article: Miriam Baer, Giovani Bakaj, Rachel Barkow, Leonardo Borlini, Nicolas Bourtin, Michael Bowes, Lincoln Caylor, Bruno Cova, Frederick Davis, Kevin Davis, Grainne de Burca, Mark Dsouza, Luca Enriques, Cindy Estlund, Samuel Estreicher, Jens Frankenreiter, Alejandro Turienzo Fernandez, Jose Carlos Abissamra Filho, Matthew Finkin, Jonathan Fisher, Garth Fitzmaurice, Stavros Gadinis, Brandon Garrett, Martin Gelter, Avi Gesser, John Gleeson, Lisa Griffin, Lawrence Helfer, Daniel Hund, Mary Inman, Rani John, Kathryn Judge, Sung Yong Kang, Issa Kohler-Hausmann, Keith Krakauer, Judy Krieg, Mattias Kumm, Katja Langenbucher, Maximo Langer, Joshua Larocca, Penelope Lepeudry, Alun Milford, Mariana Pargendler, Katharina Pistor, Peter Pope, Pablo Quinones, Daniel Richman, Veronica Root, Jacqueline Ross, Jason Schultz, Catherine Sharkey, Nicola Selvaggi, Margot Seve, Peter Solmssen, Tina Söreide, Katherine Strandburg, Nico van Eijk, Thomas Weigend, Spoerr Wolfgang, Yohimitsu Yamauchi, Bruce Yannett, and participants in workshops at Boston College Law School, Cambridge University, Columbia Law School, The London School of Economics, New York University School of Law, The Norwegian School of Economics, Oxford University, University College London, and the University of Texas School of Law. The authors also would like to thank their research assistants for their excellent work: Marc-Anthony de Boccard, Alex Dayneka, Janosch Niklas Engelhardt, Christina Faltermeier, Estelle Houser, Anais Kebir, Charlotte Robin, Marcin Sanetra, Koichi Sekine, Jonathan Silverstone, Melanie Simon, William Taylor, Michael Treves, and Benjamin Wylly.