46 Stetson L. Rev. i (2016-2017)

handle is hein.journals/stet46 and id is 1 raw text is: 


VOLUME   46                           FALL 2016                            NUMBER   1



Corporate Criminal Liability 2.0                                 Ellen S. Podgor      1


All Stick and No Carrot: The Yates Memorandum
and Corporate Criminal Liability                              Paul]. Larkin,Jr. and
                                                              John -Michael Seibler   7

       In 2015, the Yates Memorandum was distributed to senior officials at the United
       States Department of Justice. This Memorandum aims to increase the prosecution
       of individuals who are responsible for corporate wrongdoing  by providing
       cooperation credit to corporations that provide evidence of the individual's
       wrongdoing  to assist the government in resolving the criminal investigations
       against the corporation itself. The Author begins by explaining the history of
       corporate criminal liability, and describes how the law has progressed to hold a
       corporation responsible for the actions of its employees. The Author then examines
       how  the Justice Department's approach to investigating corporate crime has
       evolved over the years-this includes encouraging corporations to waive attorney-
       client privilege for the benefits of cooperation. The Yates Memorandum continues
       this trend by requiring that a corporation turn over all relevant information in
       order to receive credit for its cooperation.
            The Author argues that the Yates Memorandum  is problematic because it
       promotes  a culture of distrust between the employees and the directors of
       corporations, while also eroding the benefits of attorney-client relationships. The
       Author further argues that the Yates Memorandum essentially requires defendants
       to prosecute themselves, which is in direct opposition to the principle that the
       prosecution has the burden  of proving the defendant  is guilty. Instead of
       continuing to delegate investigations to corporations, the Author suggests that the
       Justice Department ask Congress for the additional resources needed to investigate
       the allegations of corporate wrongdoing on its own. The Author concludes by
       asking the Justice Department to reconsider the Yates Memorandum to avoid the
       risk of the unintended consequences that it poses.

The Development and Evolution of the U.S. Law
of Corporate Criminal Liability and the Yates Memo                 Sara Sun Beale   41

       In the United States, corporate criminal liability has developed and evolved over
       time as a response to growth of corporate economic power and the resulting public
       policy concerns. Most recently, the Department of Justice announced a new
       development that was articulated in Deputy Attorney General Sally Yates' Memo,
       Individual Accountability for Corporate Wrongdoing. The new policy implements
       pragmatic procedures for investigating and prosecuting both individuals and
       corporations for corporate wrongdoing, and reflects the public's desire for
       individual accountability, corporate culpability, and the need for equal justice.
            This Article discusses the importance of the Yates Memo in the historic
       framework  of corporate criminal liability, and argues that it employs utilitarian
       and pragmatic approaches to the development of corporate criminal liability, while
       also acknowledging the need for individual accountability. The Author explains

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