“The regulatory systems in place disincentiv[ize] innovation. It’s intense to fight the red tape. Stand by your principles and be comfortable with confrontation. So few people are, so when the people with the red tape come, it becomes a negotiation.”
“[M]ake no mistake, some portion of the information governments call ‘intelligence’ is nothing more than an attentive reading of the news.”
Today, I had the privilege of attending a scholarly lunch with UVA Law Professor Brandon Garrett. The topic of the day was a draft chapter from his forthcoming book on how corporations are prosecuted, entitled “Too Big to Jail.”
Professor Garrett began by explaining the practical difficulties inherent to prosecuting corporations. Traditionally, corporations face respondeat superior (literally “let the master answer”) liability for the actions of their employees. This principle was articulated by the Supreme Court (quoting an earlier treatise) in New York Central & Hudson River R.R. v. United States:
If, for example, the invisible, intangible essence of air, which we term a corporation, can level mountains, fill up valleys, lay down iron tracks, and run railroad cars on them, it can intend to do it, and can act therein as well viciously as virtuously.
212 U.S. 481, 29 S. Ct. 304, 53 L. Ed. 613 (1909).
In fact, the Department of Justice quite often declines to prosecute corporate offenders directly, signing instead Deferred Prosecution Agreements (DPAs), which most often require the payment of fines and the institution of meaningful reforms by the offendor. Typically, the corporation will work to complete its obligations over a period of years, after which the DPA will end with no subsequent prosecution.
Central to the draft chapter under discussion was the role of victims in corporate prosecutions. Professor Garrett described several past anecdotes in which victims of corporate malfeasance had no opportunity to contribute to the resulting criminal case, including BP’s Texas City Refinery explosion in 2005. He concluded by proposing that cases involving victims’ rights be treated with enhanced importance. Specifically, Professor Garrett advocated the establishment of formal rules through which victims’ stories might be heard, damage awards allocated, et cetera, over against the current non-formalized method.
In the Q&A that followed, I asked Professor Garrett whether his observations hold true for government contractors, who are heavily regulated and face far-steeper consequences than fines, including potential debarrment from all government work. Framing such consequences as a “civil collateral consequence,” Professor Garrett agreed that government contractors are far less worried about paying a fine than about potential debarrment, noting the recent Siemens foreign bribery case as an example. Prosecutors in such cases can bring to bear such enormous pressure that companies often settle. On the other hand, he noted, some companies are likely just too big (or too important) to debar. Recent examples include IBM, Boeing, and ITT.
Professor Garrett plans to complete the “Too Big to Jail” manuscript within the next year. The title will be published by Harvard University Press.
“[P]eople aren’t evenly distributed anywhere, in anything. Gross disproportions are the norm, whether or not there is any discrimination going on.”
Hi everyone! I’m Anna, the other half of Thornton Cottage. I met Daniel about four years ago, when we were both at W&L in beautiful Lexington, Virginia. I studied English and Math there, and now I’m working on my MA in English Literature while Daniel goes to law school. I’ll be finished in December, woo-hoo! I’ve learned a lot in my brief time at UVA, but it will be so nice not to have papers and homework hanging over my head!
Obviously, since I’m studying English, I love to read- especially 19th century works, including all things Jane Austen. And I’ve fallen in love with medieval literature over the past few years, partly due to some really great professors.
I might post some book reviews or notes on some of the things I’m reading, but most of my posts will probably be devoted to another love- all things crafty! I learned to sew from my mom when I was little, and I’ve been creating dresses, costumes, home decor, and other fun things since then. I’m pretty much obsessed with dresses, and I have piles of fabric that’s already been imagined into something lovely. Sometimes I wish I could just wave my wand, like the fairies in Sleeping Beauty! I hope you’ll enjoy seeing some of my projects.
I’ll also post some recipes, things I make for me and Daniel. I love to try new recipes, so much so that it’s sometimes hard for me to make the same thing twice.
That might make it hard to choose, but expect to see lots of yummy desserts!
Thanks for stopping by, and I hope you’ll come back soon
My name is Daniel Thornton, and I’m one of the two founding contributors to Thornton Cottage. The other founder is my lovely wife, Anna. Together, we plan to use this site to share our diverse interests and skills.
Anna will introduce herself soon, but let’s start with me. I am a professional pianist, trained classically for eighteen years. I am a software engineer and technology consultant, with experience working for some of the industry’s largest defense contractors. I am now a second-year J.D. Candidate at the University of Virginia School of Law, and will be clerking for a major Delaware law firm this coming summer. Further details on my background are available on my professional profile and an undergraduate profile performed by my alma mater, Washington and Lee University.
In this space, I will write about each of these areas: Music, Technology, and the Law.
I hope you will stick around to enjoy everything Anna and I will be sharing here!