On Corporate Compliance
My colleague and friend Miriam Baer has posted her latest piece, Governing Corporate Compliance (soon to appear in the Boston College Law Review), on SSRN. Here’s the abstract:
In light of the financial meltdown of 2008, it is reasonable to question whether the prior decade’s emphasis on corporate compliance – the internal programs that corporations adopt in order to educate employees, improve ethical norms, and detect and prevent violations of law – has been fruitful. This Article contends that the key problem with compliance is that we regulate it through an adversarial system that pits federal prosecutors against corporate defense counsel, fueling distrust between corporate entities and the government, and between the corporate employees and the internal monitors tasked with ensuring compliance. Despite this adversarial atmosphere, a number of scholars have suggested that corporate compliance is an example of a more collaborative regulatory approach known as “New Governance.” This Article challenges that notion, arguing that the government’s adversarial stance all but eliminates the experimental and collaborative approach championed by the New Governance movement. The Article further concludes that a New Governance model of compliance regulation is unlikely to take hold. Nevertheless, policymakers should consider New Governance’s administrative stance in lieu of the more punitive, “war-driven” approach that adjudication usually encourages.
We’ve seen a wave of compliance-oriented information law in recent years – perhaps most notably Sarbanes-Oxley – and it’s useful to ponder how worthwhile this approach is likely to prove.
Filed under: Corporate Law, Intermediaries, Law School, Scholarship