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The Guide to Monitorships: An Academic Perspective

Professor Diamantis recently published a chapter in The Guide to Monitorships, titled “An Academic Perspective.”

From the chapter: 

Monitorships are a common part of the suite of sanctions for corporate misconduct. Prosecutors show an increasing interest in actively reforming corporate criminals and seem to favour using monitors for the job. Judges, too, can and do impose sentences that involve monitor-directed reform. The role of the corporate monitor, in light of its new-found prominence, has come under increasing scrutiny by academics. The general tenor of the resulting discourse has been one of concern, namely that monitors do too much or too little, the wrong thing or the right thing in the wrong way. Corporate lawyers and academics generally incline towards the efficiencies of private ordering, which is reflected in their preference for relatively hands-off sanctions, such as fines. Monitor-directed corporate reform is anything but hands-off.

This chapter, however, sounds a relatively rare note of enthusiasm for the criminal justice potential of the corporate monitor. When private ordering becomes corrupted by familiar pathologies of the organisational setting—agency costs, collective action barriers or ineffective information channels—a more hands-on approach may be the most effective remedy. As instruments of criminal justice, monitors and the promise of reform they bring should be evaluated in light of the goals of corporate criminal law. As argued below, monitors may be uniquely situated as the most promising agents for achieving the goals of corporate criminal law. In fact, when corporate monitors are effectively used, they may obviate the need for any other form of criminal sanction. To achieve these goals, prosecutors, judges and monitors must bear in mind some of the unique weaknesses of monitorships as a criminal justice solution.

Access the entire chapter through Global Investigations Review (GIR).

Mihailis Diamantis, An Academic Perspective, in The Guide to Monitorships (Anthony S. Barkow, Neil M. Barofsky & Thomas J. Perrelli eds., 2019).

For more publications by Professor Diamantis, visit his faculty bibliography page.

 

Mihailis Diamantis