Jennifer Arlen
NYU School of Law



(Monday, 21st May 2012)

Title : Economic Analysis of Corporate Criminal Enforcement

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This lecture examines the goal and optimal structure of corporate criminal liability as applied to large corporations.  The analysis will begin with the classic economic approach to corporate liability/crime (e.g., Kornhauser, 1982; Polinsky & Shavell, 1993) which treats individual liability and corporate liability as perfect substitutes, in that the main purpose of corporate liability is to induce the firm to sanction individuals.  Under this approach that state can optimal deter wrongdoing by employees through the use of either individual liability or corporate liability; there is no need for both.  Moreover, strict corporate criminal liability for employee wrongdoing is efficient. These conclusions do not apply when the state needs to deter wrongdoing by large firms because corporate liability serves broader purposes in this context.  We will examine the central purposes of corporate liability and show how the shift in objective also alters the optimal structure of corporate liability, which now must be duty-based.  We then compare this optimal regime with existing US enforcement policy, which employs joint corporate and individual liability, with multi-tiered duty-based corporate liability.  Finally, we will examine the economic justifications for the current US practice of imposing specific performance mandates (specifically, internal corporate reforms) on firms potentially eligible for conviction, in addition to monetary sanctions.

Bibliographical references :

Must read reference : Jennifer Arlen, Economic Analysis of Corporate Criminal Liability: Theory and Evidence, in Research Handbook on Criminal Law (Keith Hylton & Alon Harel, ed.) (2012).

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A. Mitchell Polinsky, and Steven Shavell, Should Employees Be Subject to Fines and Imprisonment Given the Existence of Corporate Liability? 13 International Review of Law and Economics 239-57 (1993).

Daniel Fischel and Alan Sykes, Corporate Crime, 25 Journal of Legal Studies 319-50 (1996).

Jennifer Arlen, Removing Prosecutors from the Boardroom: Deterring Crime Without Prosecutor Interference in Corporate Governance, in Prosecutors in the Board Room: Using Criminal Law to Regulate Corporate Conduct (Anthony Barkow and Rachel Barkow, eds.) (2011).

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