ABSTRACT
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 U.S. 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 of 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.

Citation: 
Arlen, Jennifer and Buell, Samuel W., The Law of Corporate Investigations and the Global Expansion of Corporate Criminal Liability (October 30, 2019). University of Southern California Law Review (vol. 93, 2020, Forthcoming). Available at SSRN: https://ssrn.com/abstract=3478298

Jennifer H. Arlen

Associate Reporter, Compliance, Risk Management, and Enforcement

Jennifer Arlen, the Norma Z. Paige Professor of Law at NYU Law School, is one of the nation’s leading scholars on corporate liability, specializing in corporate crime, vicarious liability, and securities fraud. She also has written extensively on medical malpractice liability and experimental law and economics. Arlen received her BA in economics from Harvard College and her JD and PhD in economics from New York University. She is co-founder and director of the NYU Program on Corporate Compliance and Enforcement. She also is a co-founder, director, and past president of the Society of Empirical Legal Studies, is a former director of the American Law and Economics Association, serves on the editorial board of the American Law and Economics Review, and chaired the Law and Economics, Remedies, and Torts sections of the Association of American Law Schools.

Samuel W. Buell

Duke Law School

Samuel Buell is the Bernard M. Fishman Professor of Law at Duke Law. His research and teaching focus on criminal law and on the regulatory state, particularly regulation of corporations and financial markets. He is the author of Capital Offenses:  Business Crime and Punishment in America’s Corporate Age (W.W. Norton & Co. 2016).  His recent scholarship explores the conceptual structure of white collar offenses, the problem of behaviors that evolve to avoid legal control, and the treatment of the corporation and the white collar offender in the criminal justice system. Buell's publications have appeared in Georgetown Law JournalLaw & Contemporary ProblemsDuke Law Journal, UCLA Law ReviewNYU Law Review, Stanford Law ReviewCardozo Law Review, Indiana Law Journal, and the Oxford Handbooks. 

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