Friday, January 20, 2012
I highly recommend Professor Brandon L. Garrett's new piece in the Virginia Law Review titled, "Globalized Corporate Prosecutions." The abstract states:
"In the past, domestic prosecutions of foreign corporations were almost unheard of. This has changed dramatically just in a few years. Federal prosecutors now advertise a muscular approach targeting major foreign firms and even entire industries. High-profile prosecutions of foreign firms have shaken the international business community. Very little has been known about these cases; scholars assumed such prosecutions were rare or would not result in convictions. After all, corporate criminal liability is itself a form of American Exceptionalism. Few foreign countries hold corporations criminally accountable. To study U.S. prosecutions of foreign firms, I assembled a database of more than 300 publicly reported corporate guilty plea agreements from the past decade and I analyzed previously unexamined U.S. Sentencing Commission data archives on corporate prosecutions. Not only are large foreign firms prosecuted with some frequency, but more surprising, they typically plead guilty and are convicted. In this Article, I explore the puzzle of that unnoticed guilty plea dynamic and the disquieting problems raised by convictions of foreign firms generally. Federal prosecutors have dramatically expanded enforcement against foreign firms in several areas. I develop theoretical justifications for the evolving prosecution approach. Yet I conclude by arguing that prosecutions of foreign firms should be more clearly limited and evaluated. A series of reforms could accomplish that goal, including prosecutorial guidelines incorporating norms of comity, foreign law and governance norms. Unless prosecutors and courts carefully assess these important prosecutions, U.S. prosecutors will not remain preeminent the global corporate criminal law enforcers."