Negotiating Enforcement and Sanctioning in Regulatory Capitalism: The Need for Problem-Solving Courts

18 Pages Posted: 23 Dec 2009 Last revised: 13 Aug 2014

See all articles by Christine Parker

Christine Parker

Melbourne Law School, University of Melbourne

Date Written: December 23, 2009

Abstract

In both Australia and North America regulators and businesses have attempted to develop collaborative, problem-solving processes for settling enforcement proceedings without a full trial via ‘enforceable undertakings’ (Australia) or ‘deferred’ and ‘non-prosecution agreements’ (North America). This paper shows that the considerable challenge of effective and legitimate sanctioning of corporations in regulatory capitalism has driven the development of negotiated settlement of regulatory enforcement action. I argue that criticisms that negotiated settlements are both too harsh and too soft point to an important gap in the institutional design of regulatory capitalism. Is it possible, and if so how, to radically reconceive the role of the court in regulatory enforcement so that problem-solving courts catalyze and coordinate effective and legitimate collaborate settlements of corporate enforcement action?

Keywords: business regulation, regulatory enforcement, enforceable undertakings, negotiated settlements, deferred prosecution agreements, non prosecution agreements, regulatory compliance

JEL Classification: K42

Suggested Citation

Parker, Christine, Negotiating Enforcement and Sanctioning in Regulatory Capitalism: The Need for Problem-Solving Courts (December 23, 2009). Available at SSRN: https://ssrn.com/abstract=1527317 or http://dx.doi.org/10.2139/ssrn.1527317

Christine Parker (Contact Author)

Melbourne Law School, University of Melbourne ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia

HOME PAGE: http://law.unimelb.edu.au/about/staff/christine-parker

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