Tomorrow in D.C. I’m joining a distinguished group for a program called “Overcriminalization 2.0” (agenda) presented by GMU’s Journal of Law, Economics & Policy and Law & Economics Center, the National Association of Criminal Defense Lawyers, and the Foundation for Criminal Justice. According to the program, “[t]his symposium will capture the broad consensus on the over-criminalization problem and serve as the motivation for reform.”
I’m presenting one of the lead papers, Agents Prosecuting Agents. Here’s the abstract:
Significant questions have been raised both about the efficiency of criminalizing agency costs and the problems of excessive prosecution of crimes committed by corporate agents. This paper provides a new perspective on these questions by approaching them from the standpoint of agency cost theory. It shows that there are close analogies between the agency costs associated with prosecutors in corporate crime cases and those of the agents being prosecuted. The important difference between the two contexts is that prosecutors are not subject to many of the standard mechanisms for dealing with corporate agency costs. An implication of this analysis is that society must decide if prosecuting corporate agents is worth incurring the agency costs of prosecutors.
Other participants include former deputy A.G. Larry Thompson, Judges Jed S. Rakoff, Frederic Block and Cormac Carney, Professors Darryl Brown (Virginia), Sara Sun Beale (Duke, commenting on my paper), Kate Stith (Yale) and Geraldine Moohr (Houston), Washington Legal Foundation’s Glenn Lammi, and attorney-author Harvey Silverglate.
Looks interesting. I’ll probably have more to say afterward.