The Hoover Institution hosts "Countering Capture:  A Political Theory of Corporate Criminal Liability" on Monday, October 25, 2021 at 1:00 PM PT | 4:00 PM PT.

Governments cannot effectively deter corporate crime unless they hold both individual wrongdoers and corporations liable for corporate misconduct. Some economic analysis of law scholars argue, however, that corporations should only be subject to civil liability, as both civil and criminal can be used to impose substantial monetary penalties on firms. This Article shows that this claim ignores an important difference between criminal and civil enforcement: Civil enforcement is less likely to be effective because civil enforcement is more vulnerable to capture by large corporations than is criminal enforcement. Moreover, it shows that the joint use of criminal and civil corporate liability enhances enforcement by both enabling corporate enforcement by federal prosecutors, who are more insulated from capture, and by enabling coordinated enforcement that renders civil enforcement more effective and less vulnerable to capture.


Jennifer Arlen, Norma Z. Paige Professor of Law Director, Program on Corporate Compliance and Enforcement New York University School of Law

Jennifer Arlen’s scholarship focuses on corporate criminal enforcement, medical malpractice, and experimental law and economics. She has served as the President of both the American Law and Economics Association and the Society for Empirical Legal Studies (which she co-founded in 2005). She currently is the Associate Reporter for enforcement for the American Law Institute’s Principles of Compliance and Enforcement for Organizations. She also is on the Editorial Board of the American Law and Economics Review. A prolific scholar, Arlen has edited three books and has published in leading journals including the Rand Journal of Economics, Journal of Law & Economics, Journal of Legal Studies, Journal of Law, Economics, & Organization, Journal of Legal Analysis, Yale Law Journal, Chicago Law Review, NYU Law Review, and the University of Pennsylvania Law Review.


Adam White, Senior Fellow at the American Enterprise Institute and co-director of George Mason University’s C. Boyden Gray Center for the Study of the Administrative State

Adam White is a senior fellow at the American Enterprise Institute and co-director of George Mason University’s C. Boyden Gray Center for the Study of the Administrative State. He also serves as a public member of the Administrative Conference of the United States, and vice chair of the ABA’s Administrative Law Section. He was a research fellow at the Hoover Institution from 2015 to 2019.

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