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STETSON LAW REVIEW
VOLUME 46 FALL 2016 NUMBER 1
CORPORATE CRIMINAL LIABILITY SYMPOSIUM
INTRODUCTION
Corporate Criminal Liability 2.0 Ellen S. Podgor 1
ARTICLES
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](ViewImageLocal?handle=hein.journals/stet46&div=1&collection=&method=preview&ext=.png&size=3)
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