Sam Buell and All the Talk About Corporate Crime

The enormous and mostly unreviewable power that federal prosecutors exercise in a process dominated by corporate settlements warrant ample skepticism about the motivations underlying what they choose to disclose and say.

But it remains remarkable that there is so much more disclosure and speaking in the field of corporate crime than in any other area of federal prosecution.

And that’s a good thing according to Samuel Buell, Professor of Law at Duke University School of Law and author of the newly released law review article “Why Do Prosecutors Say Anything? The Case of Corporate Crime,” (96 North Carolina Law Review 823 (2018).)

“Professional self-interest and Washington politics may explain some of this behavior, but the effort to accomplish something programmatically likely explains more of it,” Buell writes. “This behavior has the potential to benefit the public. It is to be encouraged and, if possible, channeled. In particular, case-specific information over a large number of cases has greater value than policy boilerplate.”

“A prosecutor’s description of facts that a firm agrees to as a condition of settlement cannot fully substitute for what might be learned through full-blown litigation and trial. But settlement will continue to dominate for the foreseeable future, and those of us who wish to study and debate the practice of corporate criminal enforcement should encourage more of what we can get.”

Buell says that “prosecutors talking publicly about corporate criminal enforcement has some good reasons and desirable effects but also some unattractive motivations and potential downsides.”

“Disclosure designed to deter corporate crime should be welcomed when its benefits exceed its drawbacks in hampering effective enforcement,” Buell writes. “Disclosure meant to further the professional ambitions of prosecutors, however, has no value. Nor is it clear that the public has any real interest in disclosure that is designed only to foster legitimacy – the idea that prosecutors are doing their job – whether that idea is encouraged among the public generally or more specifically with observers in Congress.”

But Buell warns that “when it comes to federal prosecutors, we should watch what they do, not what they say.”

“The growing phenomenon of the ‘speaking settlement’ is to be warmly welcomed and further encouraged,” he writes. “Give us lots of detail about the nature of the underlying wrongdoing and the strength of the case: who was involved, what was done, where it occurred, how long it lasted, and so on. Be specific. And always get an admission so the facts become a lasting and indisputable record of the case. Put numbers on things whenever possible. Tell the public what the sanctions are going to be and how they were calculated. Describe in detail the extent to which the crimes were or were not attributable to corporate culture, compliance programs, management directives, and the like – explain how it was a case of corporate crime, not just respondeat superior liability. Quantitatively or qualitatively, score the quality of a company’s efforts at remediation and cooperation relative to other cases. Tell the public how prosecutors reasoned their way to this particular settlement. And when possible – perhaps this is asking too much –  get the company to agree to disclose its own investigative report on the wrongdoing.”

“What we get through this disclosure mechanism is not the bland language of unenforceable policy pronouncements but a kind of common law of corporate enforcement – a body of case law, if you like, that we can read and study.”

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