Saturday, March 10, 2018
Samuel W. Buell (Duke University School of Law) has posted Why Do Prosecutors Say Anything? The Case of Corporate Crime (North Carolina Law Review, Vol. 96, 2018) on SSRN. Here is the abstract:
Criminal procedure law does not require prosecutors to speak outside of court. Professional regulations and norms discourage and sometimes prohibit prosecutors from doing so. Litigation often rewards strategic and tactical maintenance of the element of surprise. Institutional incentives encourage bureaucrats, especially those not bound by procedural requirements of administrative law, to decline to commit themselves to future action. In the always exceptional field of corporate crime, however, the Department of Justice and federal line prosecutors have developed practices of signaling and describing their exercise of discretion through detailed press releases, case filings, and policy documents. This contribution to a symposium dealing with secrecy in enforcement of securities laws develops causal explanations for this prosecutorial behavior and argues, perhaps counterintuitively, that federal prosecutors' disclosure of details about their settlement of corporate enforcement actions is more publicly valuable than their issuance of policies and guidelines.