For many years, law and economics scholars, as well as politicians and regulators, have debated whether corporate criminal enforcement overdeters beneficial corporate activity or in the alternative, lets corporate criminals off too easily. This debate has recently expanded in its polarization: On the one hand, academics, judges, and politicians have excoriated the DOJ for failing to send guilty bankers to jail in the wake of the financial crisis; on the other, the DOJ has since relaxed policies aimed to secure individual lability and reduced the size of fines and number of prosecutions.
A crucial and yet understudied piece of evidence in this conversation is how crime has responded to our enforcement regime. In the last few decades, the DOJ has embraced many law and economics enforcement tenents including entity liability over individual liability, fewer prosecutions and a greater number of settlements, and high fines over jail time. And several papers have documented these enforcement trends in detail. However, unlike every other type of crime, the government does not collect data about corporate crime levels. Therefore, we cannot tell how corporations are responding to these enforcement practices.
In this paper, we take important first steps in determining how corporate crime, and financial institution crime in particular, is responding to the DOJ’s enforcement regime and its shifting priorities. Specifically, we proxy for financial crime using three novel sources: the Financial Crimes Enforcement Network (FinCEN) Suspicious Activity Reports (SARs), consumer complaints made to the Consumer Financial Protection Bureau (CFPB), and whistleblower complaints made to the Securities and Exchange Commission (SEC). Each source reveals a steep increase in complaints or reports indicative of financial institution misconduct. We also examine levels of public company recidivism, which are also on the rise. And we document a potential cause: recidivist companies are much larger than non-recidivist companies, but they receive smaller fines than non-recidivist companies (measured as a percentage of assets and revenue). In theory, high fines can supply adequate deterrence by themselves, but our results indicate that it might not be politically feasible to levy a sufficiently high fine to deter future incidents of corporate crime. Put differently, for large companies, criminal penalties may be just another cost of doing business — and quite a reasonable cost at that. We conclude by offering recommendations for enforcement agencies and policymakers. In particular, we observe that many of the assumptions inherent to classical law and economics theory are inacurrate with respect to white-collar crime. Fines large enough to deter malfeasance are large and potentially infinite — well outside the possibility set for policymakers. The DOJ should therefore consider other ways of securing deterrence, such as by increasing penalties against guilty individuals.
Lund, Dorothy S. and Sarin, Natasha, "The Cost of Doing Business: Corporate Crime and Punishment Post-Crisis" (2020). Faculty Scholarship at Penn Law. 2147.
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