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Making Waves: Using Hawaii’s and California’s Public Trust Doctrines to Bring Gender Equality to Professional Big-Wave Surfing
Get PDFThree Conceptions of Corporate Crime (and One Avenue for Reform)
No full textOne of corporate criminal law’s most enduring mysteries is the persistence of the deferred prosecution agreement (DPA), the means by which federal prosecutors often dispose of corporate prosecutions. This extra-judicial settlement device attracts near-universal criticism. Progressives complain that DPA settlements are too weak and allow corporate managers to treat enforcement as just another cost of doing business. Good-government advocates worry that the process that generates these agreements is often too opaque. And corporate defenders claim that they impose unnecessary and inefficient costs on legitimate operations. Despite these criticisms, DPAs have remained one of the federal prosecutor’s key tools for addressing corporate wrongdoing.This contribution to Duke Law School’s Symposium: Corporate Crime 20 Years After the Creation of the Justice Department’s Prosecution Policy, explores two related questions: Why amid so much criticism, has the Justice Department continued to use extrajudicial settlements to address corporate crime? And if the Justice Department finds these settlements valuable, why has it been unable to generate greater support for its approach?The answer to these questions lies in our failure to agree on corporate criminal law’s primary purpose. Neither academics nor practitioners concur on why we punish corporations. This lack of consensus, in turn, permits the DPA to outshine its potential alternatives. To better understand this dissensus, I devise a taxonomy of how commentators conceptualize corporate crime and its enforcement. Some see it as just another subspecies of crime; some see it as an unconventional species of regulation; and finally, some conceptualize it as the means for securing potentially wide-ranging structural reform. Each of these viewpoints generates its own set of normative claims, and each imagines an enforcement nirvana that functions differently from the approach that exists today.How can we best solve this lack of consensus? Perhaps we should look to the legislature. For years, Congress has played a remarkably small role in the development of corporate criminal law. Instead, it has ceded power and responsibility to its coordinate branches. As a result, disagreements about what corporate crime is and what its prosecution should have achieve have festered unaddressed. The final Part of this Article therefore turns to the question of legislative reform and the ways in which legislative effort might yield greater agreement on corporate crime enforcement’s purpose and consequently produce enforcement approaches more effective and less reviled than the much maligned DPA
Victim Impact Statements at Canadian Corporate Sentencing
Get PDFThe recent SNC-Lavalin scandal and its political fallout have drawn public attention to an existing culture of impunity enjoyed by corporate criminal wrongdoers, despite the 2004 changes to the Criminal Code of Canada that intended to make corporate prosecutions easier. In this article, I argue that the conceptual problems with corporate criminal liability may lie in the criminal justice system’s general misapprehension of the nature of corporate crime; especially of the distinct nature of the harm experienced by white collar victims. I further argue that, therefore, part of the solution to under-enforcement may be evidentiary: the Crown and courts should, where applicable, allow and particularly, encourage the victims of corporate crime to testify at sentencing hearings, on the occasions that corporations do go to trial. This will increase public awareness of the harms suffered by corporate victims and may thus increase support for greater enforcement generally, through both prosecutions and plea bargains. Finally, I consider the challenges to a victim-oriented understanding of corporate crime posed by the introduction of the remediation agreement in Canada. I compare the Canadian context to that of the United States — where deferred prosecutions agreements have long been in use and long caused such problems — to suggest how these problems may be avoided given the differences between the two countries’ substantive law on corporate crime
