Prosecutors in the Boardroom

Using Criminal Law to Regulate Corporate Conduct

287 pages

April, 2011

ISBN: 9780814787038



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Anthony S. Barkow is a partner in the white collar defense and investigations practice at law firm Jenner & Block. He received the Attorney General’s Award for Exceptional Service, the highest award bestowed in the Justice Department.

All books by Anthony S. Barkow

Rachel E. Barkow is Professor of Law and the Faculty Director of the Center on the Administration of Criminal Law at NYU School of Law.

All books by Rachel E. Barkow

Who should police corporate misconduct and how should it be policed? 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.

Prosecutors in the Boardroom explores the questions raised by this practice by compiling the insights of the leading lights in the field, including criminal law professors who specialize in the field of corporate criminal liability and criminal law, a top economist at the SEC who studies corporate wrongdoing, and a leading expert on the use of monitors in criminal law. The essays in this volume move beyond criticisms of the practice to closely examine exactly how regulation by prosecutors works. Broadly, the contributors consider 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.

Contributors: Cindy R. Alexander, Jennifer Arlen, Anthony S. Barkow, Rachel E. Barkow, Sara Sun Beale, Samuel W. Buell, Mark A. Cohen, Mariano-Florentino Cuellar, Richard A. Epstein, Brandon L. Garrett, Lisa Kern Griffin, and Vikramaditya Khanna


  • “A must-read for practitioners and scholars wrestling with the challenges of corporate crime and punishment.”

    —James Comey, former Deputy Attorney General of the United States

  • “An essential collection; the power of prosecutors in a post-Arthur Andersen world demands thoughtful and scholarly attention and gets it in this invaluable volume.”

    —Paul Clement, former Solicitor General of the United States

  • "Prosecutors in the a wealth of empirical data about contemporary corporate law enforcement policy...[and] demonstrates what happens when well-intentioned, intelligent, dedicated law enforcement agents are freed from the constraints of liberalism."

    —John Hasnas, Regulation