Ron Formisano
- Published in print:
- 2017
- Published Online:
- May 2018
- ISBN:
- 9780252041273
- eISBN:
- 9780252099878
- Item type:
- book
- Publisher:
- University of Illinois Press
- DOI:
- 10.5622/illinois/9780252041273.001.0001
- Subject:
- Sociology, Social Stratification, Inequality, and Mobility
Almost all studies of the nation’s extreme inequality of income and wealth have overlooked a critical, overarching cause of the creation of The New Gilded Age. The permanent political class has ...
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Almost all studies of the nation’s extreme inequality of income and wealth have overlooked a critical, overarching cause of the creation of The New Gilded Age. The permanent political class has driven and sustained economic and political inequality not only with the government policies it has crafted over the past four decades. It has created inequality by becoming a self-dealing, self-serving nepotistic oligarchy that is enabling the One Percent and the .01 Percent to create an American aristocracy of wealth.
American Oligarchy describes a multifaceted culture of self-dealing and corruption reaching into every sector of American society. The political class’s direct creation of economic inequality by channeling the flow of income and wealth to elites, has been described extensively; less exposed has been how its self-aggrandizement indirectly—but hidden in plain sight—creates a culture of corruption that infects the entire society.Less
Almost all studies of the nation’s extreme inequality of income and wealth have overlooked a critical, overarching cause of the creation of The New Gilded Age. The permanent political class has driven and sustained economic and political inequality not only with the government policies it has crafted over the past four decades. It has created inequality by becoming a self-dealing, self-serving nepotistic oligarchy that is enabling the One Percent and the .01 Percent to create an American aristocracy of wealth.
American Oligarchy describes a multifaceted culture of self-dealing and corruption reaching into every sector of American society. The political class’s direct creation of economic inequality by channeling the flow of income and wealth to elites, has been described extensively; less exposed has been how its self-aggrandizement indirectly—but hidden in plain sight—creates a culture of corruption that infects the entire society.
Anthony S. Barkow and Rachel E. Barkow (eds)
- Published in print:
- 2011
- Published Online:
- March 2016
- ISBN:
- 9780814787038
- eISBN:
- 9780814709375
- Item type:
- book
- Publisher:
- NYU Press
- DOI:
- 10.18574/nyu/9780814787038.001.0001
- Subject:
- Law, Criminal Law and Criminology
In recent years, the Department of Justice has resolved investigations of dozens of Fortune 500 companies via deferred prosecution agreements and non-prosecution agreements, where, instead of facing ...
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In recent years, the Department of Justice has resolved investigations of dozens of Fortune 500 companies via deferred prosecution agreements and non-prosecution agreements, where, instead of facing criminal charges, these companies become regulated by outside agencies. Increasingly, the threat of prosecution and such prosecution agreements is being used to regulate corporate behavior. This practice has been sharply criticized on numerous fronts: agreements are too lenient, there is too little oversight of these agreements, and, perhaps most important, the criminal prosecutors doing the regulating aren't subject to the same checks and balances that civil regulatory agencies are. This book explores the questions raised by this practice by compiling the insights of the leading lights in the field. The chapters move beyond criticisms of the practice to closely examine exactly how corporate regulation by prosecutors works. Broadly, the book considers who should police corporate misconduct and how it should be policed, and in conclusion offer a policy blueprint of best practices for federal and state prosecution.Less
In recent years, the Department of Justice has resolved investigations of dozens of Fortune 500 companies via deferred prosecution agreements and non-prosecution agreements, where, instead of facing criminal charges, these companies become regulated by outside agencies. Increasingly, the threat of prosecution and such prosecution agreements is being used to regulate corporate behavior. This practice has been sharply criticized on numerous fronts: agreements are too lenient, there is too little oversight of these agreements, and, perhaps most important, the criminal prosecutors doing the regulating aren't subject to the same checks and balances that civil regulatory agencies are. This book explores the questions raised by this practice by compiling the insights of the leading lights in the field. The chapters move beyond criticisms of the practice to closely examine exactly how corporate regulation by prosecutors works. Broadly, the book considers who should police corporate misconduct and how it should be policed, and in conclusion offer a policy blueprint of best practices for federal and state prosecution.
Ron Formisano
- Published in print:
- 2017
- Published Online:
- May 2018
- ISBN:
- 9780252041273
- eISBN:
- 9780252099878
- Item type:
- chapter
- Publisher:
- University of Illinois Press
- DOI:
- 10.5622/illinois/9780252041273.003.0009
- Subject:
- Sociology, Social Stratification, Inequality, and Mobility
America’s oligarchy is creating an aristocracy of inherited wealth.
America’s oligarchy is creating an aristocracy of inherited wealth.
Anthony S. Barkow and Rachel E. Barkow
- Published in print:
- 2011
- Published Online:
- March 2016
- ISBN:
- 9780814787038
- eISBN:
- 9780814709375
- Item type:
- chapter
- Publisher:
- NYU Press
- DOI:
- 10.18574/nyu/9780814787038.003.0001
- Subject:
- Law, Criminal Law and Criminology
This book explores the debate about the use of criminal law to regulate corporate conduct. More specifically, it considers the power of prosecutors to regulate corporations accused of criminal ...
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This book explores the debate about the use of criminal law to regulate corporate conduct. More specifically, it considers the power of prosecutors to regulate corporations accused of criminal wrongdoing through agreements consisting of nonprosecution agreements (NPAs) and deferred prosecution agreements (DPAs). Also known as settlement agreements, NPAs and DPAs allow companies to avoid indictments so long as they meet the prosecutors' regulatory terms. In many of these agreements, prosecutors impose affirmative obligations on companies to change personnel, revamp their business practices, and adopt new models of corporate governance. This book examines a number of fundamental questions that arise from the practice of corporate regulation by prosecutors, such as how the government should seek to deter corporate misconduct, how to promote good practices in prosecutorial involvement in corporate governance, how to improve coordination and minimize collisions between prosecutors and regulatory agencies, and how much power corporate monitors should have.Less
This book explores the debate about the use of criminal law to regulate corporate conduct. More specifically, it considers the power of prosecutors to regulate corporations accused of criminal wrongdoing through agreements consisting of nonprosecution agreements (NPAs) and deferred prosecution agreements (DPAs). Also known as settlement agreements, NPAs and DPAs allow companies to avoid indictments so long as they meet the prosecutors' regulatory terms. In many of these agreements, prosecutors impose affirmative obligations on companies to change personnel, revamp their business practices, and adopt new models of corporate governance. This book examines a number of fundamental questions that arise from the practice of corporate regulation by prosecutors, such as how the government should seek to deter corporate misconduct, how to promote good practices in prosecutorial involvement in corporate governance, how to improve coordination and minimize collisions between prosecutors and regulatory agencies, and how much power corporate monitors should have.
Richard A. Epstein
- Published in print:
- 2011
- Published Online:
- March 2016
- ISBN:
- 9780814787038
- eISBN:
- 9780814709375
- Item type:
- chapter
- Publisher:
- NYU Press
- DOI:
- 10.18574/nyu/9780814787038.003.0003
- Subject:
- Law, Criminal Law and Criminology
This chapter examines the appropriate limit of deferred prosecution agreements (DPAs) in light of the serious dangers in using any principle of corporate criminal liability. It begins with an ...
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This chapter examines the appropriate limit of deferred prosecution agreements (DPAs) in light of the serious dangers in using any principle of corporate criminal liability. It begins with an overview of the so-called “grand inversion” and the role that the Holder, Thompson, and McNulty memos played in exploiting this grand inversion against corporations. It then considers how the unconstitutional conditions doctrine should inform the question of what types of terms should be included in DPAs. It also discusses vicarious criminal liability and the corporate criminal prosecution against the now defunct Arthur Andersen and Co. It argues that the existing standard for corporate crime is too broad and that prosecutors exercise too much power over companies. The chapter concludes with a discussion of terms requiring corporations to take certain positions in political debates over questions of social policy.Less
This chapter examines the appropriate limit of deferred prosecution agreements (DPAs) in light of the serious dangers in using any principle of corporate criminal liability. It begins with an overview of the so-called “grand inversion” and the role that the Holder, Thompson, and McNulty memos played in exploiting this grand inversion against corporations. It then considers how the unconstitutional conditions doctrine should inform the question of what types of terms should be included in DPAs. It also discusses vicarious criminal liability and the corporate criminal prosecution against the now defunct Arthur Andersen and Co. It argues that the existing standard for corporate crime is too broad and that prosecutors exercise too much power over companies. The chapter concludes with a discussion of terms requiring corporations to take certain positions in political debates over questions of social policy.
Lisa Kern Griffin
- Published in print:
- 2011
- Published Online:
- March 2016
- ISBN:
- 9780814787038
- eISBN:
- 9780814709375
- Item type:
- chapter
- Publisher:
- NYU Press
- DOI:
- 10.18574/nyu/9780814787038.003.0005
- Subject:
- Law, Criminal Law and Criminology
This chapter examines the role of private parties in criminal law enforcement of corporations,with particular emphasis on the compliance industry and corporate monitors. More specifically, it ...
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This chapter examines the role of private parties in criminal law enforcement of corporations,with particular emphasis on the compliance industry and corporate monitors. More specifically, it considers the nature of the collaboration between public enforcers and private parties that stems from current corporate enforcement strategies, along with the costs and benefits of those partnerships. It also explores the changing conceptions of public and private interests developing out of the 2008 economic crisis and the bailout of financial institutions. Finally, it discusses the impact of public/private partnerships on corporate crime deterrence and whether deferred prosecution agreements have achieved the advantages of industry-wide corporate regulation or succeeded in inculcating broad norms of compliance.Less
This chapter examines the role of private parties in criminal law enforcement of corporations,with particular emphasis on the compliance industry and corporate monitors. More specifically, it considers the nature of the collaboration between public enforcers and private parties that stems from current corporate enforcement strategies, along with the costs and benefits of those partnerships. It also explores the changing conceptions of public and private interests developing out of the 2008 economic crisis and the bailout of financial institutions. Finally, it discusses the impact of public/private partnerships on corporate crime deterrence and whether deferred prosecution agreements have achieved the advantages of industry-wide corporate regulation or succeeded in inculcating broad norms of compliance.
Brandon L. Garrett
- Published in print:
- 2011
- Published Online:
- March 2016
- ISBN:
- 9780814787038
- eISBN:
- 9780814709375
- Item type:
- chapter
- Publisher:
- NYU Press
- DOI:
- 10.18574/nyu/9780814787038.003.0007
- Subject:
- Law, Criminal Law and Criminology
This chapter examines the relationship between prosecutors and regulators in corporate cases, with particular emphasis on the merits of corporate regulation by prosecution. It first considers the ...
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This chapter examines the relationship between prosecutors and regulators in corporate cases, with particular emphasis on the merits of corporate regulation by prosecution. It first considers the role that regulators are already playing in the formulation of nonprosecution agreements and deferred prosecution agreements before discussing corporate prosecutions and the involvement of regulators in the negotiation of settlements. It then offers suggestions to improve the relationship between prosecutors and federal regulatory agencies and notes how a largely collaborative approach has emerged from the relationship between federal regulators and prosecutors. It also describes the benefits of the complex system of overlapping enforcement authority despite a sometimes tense partnership between prosecutors and regulators.Less
This chapter examines the relationship between prosecutors and regulators in corporate cases, with particular emphasis on the merits of corporate regulation by prosecution. It first considers the role that regulators are already playing in the formulation of nonprosecution agreements and deferred prosecution agreements before discussing corporate prosecutions and the involvement of regulators in the negotiation of settlements. It then offers suggestions to improve the relationship between prosecutors and federal regulatory agencies and notes how a largely collaborative approach has emerged from the relationship between federal regulators and prosecutors. It also describes the benefits of the complex system of overlapping enforcement authority despite a sometimes tense partnership between prosecutors and regulators.
Rachel E. Barkow
- Published in print:
- 2011
- Published Online:
- March 2016
- ISBN:
- 9780814787038
- eISBN:
- 9780814709375
- Item type:
- chapter
- Publisher:
- NYU Press
- DOI:
- 10.18574/nyu/9780814787038.003.0008
- Subject:
- Law, Criminal Law and Criminology
This chapter examines the capacity of both state attorney generals and federal prosecutors to act as regulators based on democratic accountability, institutional competence, and procedural ...
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This chapter examines the capacity of both state attorney generals and federal prosecutors to act as regulators based on democratic accountability, institutional competence, and procedural reliability. It first considers the factors that give prosecutors the ability to assume a regulatory role and goes on to discuss corporate regulation by prosecutors. It then compares prosecutors and traditional regulators in terms of accountability and shows that nonprosecution agreements, deferred prosecution agreements, and settlement agreements often decide complex questions of how businesses should operate. It also asks whether prosecutors can make efficient decisions in the business context and whether regulatory agencies possess greater institutional competence than prosecutors. The chapter concludes by assessing the procedural reliability of prosecutorial regulation.Less
This chapter examines the capacity of both state attorney generals and federal prosecutors to act as regulators based on democratic accountability, institutional competence, and procedural reliability. It first considers the factors that give prosecutors the ability to assume a regulatory role and goes on to discuss corporate regulation by prosecutors. It then compares prosecutors and traditional regulators in terms of accountability and shows that nonprosecution agreements, deferred prosecution agreements, and settlement agreements often decide complex questions of how businesses should operate. It also asks whether prosecutors can make efficient decisions in the business context and whether regulatory agencies possess greater institutional competence than prosecutors. The chapter concludes by assessing the procedural reliability of prosecutorial regulation.
Anthony S. Barkow and Rachel E. Barkow
- Published in print:
- 2011
- Published Online:
- March 2016
- ISBN:
- 9780814787038
- eISBN:
- 9780814709375
- Item type:
- chapter
- Publisher:
- NYU Press
- DOI:
- 10.18574/nyu/9780814787038.003.0011
- Subject:
- Law, Criminal Law and Criminology
This concluding chapter proposes a comprehensive set of reforms to improve the current system of corporate regulation by prosecutors. Some of these reforms would require fundamental shifts in the way ...
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This concluding chapter proposes a comprehensive set of reforms to improve the current system of corporate regulation by prosecutors. Some of these reforms would require fundamental shifts in the way we currently approach nonprosecution agreements, deferred prosecution agreements, and settlement agreements. These include junking corporate criminal liability, making criminal law enforcement a key part of the regulatory enterprise of risk regulation, increasing the Securities and Exchange Commission's activity in addressing corporate misconduct, and reforming the role of corporate monitors and private actors. This chapter also emphasizes the need more empirical data about the effectiveness of settlement agreements in reducing corporate misconduct, the costs of their use, the availability of alternatives, and the costs and benefits of particular terms within agreements.Less
This concluding chapter proposes a comprehensive set of reforms to improve the current system of corporate regulation by prosecutors. Some of these reforms would require fundamental shifts in the way we currently approach nonprosecution agreements, deferred prosecution agreements, and settlement agreements. These include junking corporate criminal liability, making criminal law enforcement a key part of the regulatory enterprise of risk regulation, increasing the Securities and Exchange Commission's activity in addressing corporate misconduct, and reforming the role of corporate monitors and private actors. This chapter also emphasizes the need more empirical data about the effectiveness of settlement agreements in reducing corporate misconduct, the costs of their use, the availability of alternatives, and the costs and benefits of particular terms within agreements.
Jennifer Arlen
- Published in print:
- 2011
- Published Online:
- March 2016
- ISBN:
- 9780814787038
- eISBN:
- 9780814709375
- Item type:
- chapter
- Publisher:
- NYU Press
- DOI:
- 10.18574/nyu/9780814787038.003.0020
- Subject:
- Law, Criminal Law and Criminology
This chapter argues that prosecutors can effectively deter corporate crimes if they are given the combined power to prosecute firms for their employees' corporate crimes and the power to offer ...
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This chapter argues that prosecutors can effectively deter corporate crimes if they are given the combined power to prosecute firms for their employees' corporate crimes and the power to offer leniency to firms that monitor effectively, report misconduct, and cooperate. It begins with an overview of U.S. practice governing corporate liability and the wisdom of granting prosecutors authority to regulate corporate governance. It then considers the traditional U.S. approach to corporate criminal liability and explains why the Department of Justice had to abandon it in order to adequately deter crime. It also examines how corporate criminal liability evolved to embrace a proactive policy of using nonprosecution to convince corporations to deter crime. It suggests that prosecutors have gone too far in regulating companies and that civil regulatory authorities should exercise the sole authority over mandated corporate governance reforms, including monitoring requirements. Finally, it contends that prosecutors should use prosecution and the threat of prosecution to secure ex post cooperation from firms, instead of nonprosecution agreements or deferred prosecution agreements to induce structural reforms.Less
This chapter argues that prosecutors can effectively deter corporate crimes if they are given the combined power to prosecute firms for their employees' corporate crimes and the power to offer leniency to firms that monitor effectively, report misconduct, and cooperate. It begins with an overview of U.S. practice governing corporate liability and the wisdom of granting prosecutors authority to regulate corporate governance. It then considers the traditional U.S. approach to corporate criminal liability and explains why the Department of Justice had to abandon it in order to adequately deter crime. It also examines how corporate criminal liability evolved to embrace a proactive policy of using nonprosecution to convince corporations to deter crime. It suggests that prosecutors have gone too far in regulating companies and that civil regulatory authorities should exercise the sole authority over mandated corporate governance reforms, including monitoring requirements. Finally, it contends that prosecutors should use prosecution and the threat of prosecution to secure ex post cooperation from firms, instead of nonprosecution agreements or deferred prosecution agreements to induce structural reforms.
Cecily Rose
- Published in print:
- 2015
- Published Online:
- October 2015
- ISBN:
- 9780198737216
- eISBN:
- 9780191800726
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198737216.003.0003
- Subject:
- Law, Public International Law, Law of Obligations
Chapter 2 examines the 1997 OECD Anti-Bribery Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and related non-binding instruments—the 2009 ...
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Chapter 2 examines the 1997 OECD Anti-Bribery Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and related non-binding instruments—the 2009 Recommendation of the Council for Further Combating Bribery of Foreign Public Officials in International Business Transactions and the 2010 Good Practice Guidance on Internal Controls, Ethics, and Compliance. It shows how the OECD’s influence on domestic legal systems has been aided rather than hindered by its association with these non-binding instruments. The US Foreign Corrupt Practices Act and UK Bribery Act 2010 both show that the effectiveness of the OECD Anti-Bribery Convention has been enhanced because of its capacity to evolve through these recommendations and guidance. The OECD Working Group on Bribery has also influenced domestic implementation and enforcement of the Convention, though it operates on the basis of peer pressure rather than binding sanctions. The domestic influence of the Working Group has its limitations, however, as demonstrated by its hard fought battle for implementation of the Convention in the United Kingdom.Less
Chapter 2 examines the 1997 OECD Anti-Bribery Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and related non-binding instruments—the 2009 Recommendation of the Council for Further Combating Bribery of Foreign Public Officials in International Business Transactions and the 2010 Good Practice Guidance on Internal Controls, Ethics, and Compliance. It shows how the OECD’s influence on domestic legal systems has been aided rather than hindered by its association with these non-binding instruments. The US Foreign Corrupt Practices Act and UK Bribery Act 2010 both show that the effectiveness of the OECD Anti-Bribery Convention has been enhanced because of its capacity to evolve through these recommendations and guidance. The OECD Working Group on Bribery has also influenced domestic implementation and enforcement of the Convention, though it operates on the basis of peer pressure rather than binding sanctions. The domestic influence of the Working Group has its limitations, however, as demonstrated by its hard fought battle for implementation of the Convention in the United Kingdom.
Andrew Boutros
- Published in print:
- 2019
- Published Online:
- May 2019
- ISBN:
- 9780190232399
- eISBN:
- 9780190232412
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780190232399.003.0026
- Subject:
- Law, Criminal Law and Criminology, Company and Commercial Law
Companies—especially publicly traded companies—do not want to go to trial in criminal cases. In fact, they do not want to be indicted at all. Indictment, let alone trial, can have serious ...
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Companies—especially publicly traded companies—do not want to go to trial in criminal cases. In fact, they do not want to be indicted at all. Indictment, let alone trial, can have serious consequences. With the dramatic increase in corporate criminal prosecutions over the last two decades, a fourth option has emerged in the corporate criminal arena: deferred prosecution agreements (DPAs) and nonprosecution agreements (NPAs), which are alternatives to the traditional “guilty” or “not guilty” approach that the law has generally taken to charged crimes. Collectively, these agreements are known as corporate pretrial diversion agreements. Whether the government elects to use one of these agreements depends on multiple factors.Less
Companies—especially publicly traded companies—do not want to go to trial in criminal cases. In fact, they do not want to be indicted at all. Indictment, let alone trial, can have serious consequences. With the dramatic increase in corporate criminal prosecutions over the last two decades, a fourth option has emerged in the corporate criminal arena: deferred prosecution agreements (DPAs) and nonprosecution agreements (NPAs), which are alternatives to the traditional “guilty” or “not guilty” approach that the law has generally taken to charged crimes. Collectively, these agreements are known as corporate pretrial diversion agreements. Whether the government elects to use one of these agreements depends on multiple factors.
Andrew Boutros
- Published in print:
- 2019
- Published Online:
- May 2019
- ISBN:
- 9780190232399
- eISBN:
- 9780190232412
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780190232399.003.0002
- Subject:
- Law, Criminal Law and Criminology, Company and Commercial Law
Australia’s anti-bribery and anti-corruption laws appear simple in expression but have proved illusive in securing successful prosecutions. The structure of the foreign bribery offense is complicated ...
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Australia’s anti-bribery and anti-corruption laws appear simple in expression but have proved illusive in securing successful prosecutions. The structure of the foreign bribery offense is complicated and requires numerous physical and mental elements to be established for each limb of the offense. Since 1999 when Australia enacted its foreign bribery laws, there have been several corporate and individual guilty pleas in foreign bribery cases but as yet no contested trials. The first case in 2011 arising out of the Securency banknote printing scandal has concluded with mixed results: several plea deals yet other prosecutions permanently stayed due to illegal conduct on the part of the investigative agencies. Other more recent cases have started but are early in the criminal justice system. The traditional approach of the Australian prosecutors is that once charges are laid, they expect a guilty plea to the offense charged or an agreed lesser offenses and then any discount is a matter for the sentencing court. Australia still lacks a structured approach to complex commercial crime including foreign bribery. While there are reforms pending before the Australian government on changes to the foreign bribery offense deferred prosecution agreements, a strict liability corporate offense of failing to prevent foreign bribery, and enhanced private sector whistle-blower laws, they are yet to be implemented. While resources at the Commonwealth level have improved over the years, they remain diffuse, underfunded, and under-resourced. Australian business is starting to adopt a more proactive response to manage offshore risk and the expected legislative reforms are pushing this along. Australian business increasingly knows it must address these issues in a global economy as its most significant trading partners are taking a similarly tough stand against bribery and corruption.Less
Australia’s anti-bribery and anti-corruption laws appear simple in expression but have proved illusive in securing successful prosecutions. The structure of the foreign bribery offense is complicated and requires numerous physical and mental elements to be established for each limb of the offense. Since 1999 when Australia enacted its foreign bribery laws, there have been several corporate and individual guilty pleas in foreign bribery cases but as yet no contested trials. The first case in 2011 arising out of the Securency banknote printing scandal has concluded with mixed results: several plea deals yet other prosecutions permanently stayed due to illegal conduct on the part of the investigative agencies. Other more recent cases have started but are early in the criminal justice system. The traditional approach of the Australian prosecutors is that once charges are laid, they expect a guilty plea to the offense charged or an agreed lesser offenses and then any discount is a matter for the sentencing court. Australia still lacks a structured approach to complex commercial crime including foreign bribery. While there are reforms pending before the Australian government on changes to the foreign bribery offense deferred prosecution agreements, a strict liability corporate offense of failing to prevent foreign bribery, and enhanced private sector whistle-blower laws, they are yet to be implemented. While resources at the Commonwealth level have improved over the years, they remain diffuse, underfunded, and under-resourced. Australian business is starting to adopt a more proactive response to manage offshore risk and the expected legislative reforms are pushing this along. Australian business increasingly knows it must address these issues in a global economy as its most significant trading partners are taking a similarly tough stand against bribery and corruption.
