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Fla. L. Rev. Forum

Peter J. Henning
Dealing With Corporate Misconduct
Response to Lawrence A. Cunningham, Deferred Prosecutions and Corporate Governance: An Integrated Approach to Investigation and Reform

The standard method, these days, to resolve a criminal investigation of a corporation, particularly those with publicly traded shares, is a deferred or non-prosecution agreement. Under such agreements, the company generally pays a fine, some of which have been quite hefty, and perhaps submit to outside monitoring. Upon announcement of the resolution of the case, a company can be expected to issue a contrite public statement committing itself to making a greater effort toward future compliance with the law. For particularly severe or high-profile cases, such as when the Department of Justice wants to show how tough it is on crime, a guilty plea by the organization may be required. Finally, prosecutors may require a company to alter its internal governance structure, perhaps by splitting the jobs of chief executive and chair of the board of directors or creating new reporting lines within the organization. Read More.

Fla. L. Rev. Forum

Manuel A. Utset
Self-Control Engineering
Response to Miriam H. Baer, Confronting the Two Faces of Corporate Fraud

Professor Miriam Baer’s article, Confronting the Two Faces of Corporate Fraud, is an important contribution to the growing literature on self-control problems and criminal misconduct.1 Professor Baer is concerned with both time-consistent (TC) and time-inconsistent (TI) misconduct. One of the important contributions of Professor Baer’s article is its careful analysis of opportunistic misconduct, particularly in contexts in which actors may have TC preferences or varying degrees of preference for immediate gratification. A second contribution is its analysis of the costs and benefits of various mechanisms for deterring TC and TI opportunistic behavior. Read More.


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