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

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?