Let’s Prevent the Last One!
Regulation, Law Enforcement and the Financial Crisis
International Conference
Max Planck Institute for Foreign and International Criminal Law
7-8 September 2012 • Freiburg, Germany
Concept of the Conference & Program
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Concept of the Conference
The financial crisis has been the topic of numerous academic articles, books,
symposia and conferences across many disciplines, ranging from economics to psychology, political science to criminal law.
Yet as various disciplines are seeking to grasp this complex social phenomenon, it
is increasingly clear that a fuller understanding of what happened, as well as what is to
be done, presupposes an interdisciplinary discourse integrating many paradigms from
numerous fields of study.
This is especially true when it comes to criminal law and criminology. In order to
understand the complex processes that lead to breaches of the law on the one hand,
and the state reactions to these violations on the other hand, criminology needs to employ a far more interdisciplinary approach to white collar crime, integrating theories and
methodologies of other disciplines, such as political science, psychology, economics,
organisational studies and ethnography.
Moreover, in fields like financial regulation and securities law, research should
not be confined to questions of criminal law: it is vital to understand the very process of
drawing the line, both in legislation and enforcement practice, between criminal and
non-criminal conduct.
Traditional approaches to white collar crime and financial criminal law do not
possess the theoretical complexity and methodological diversity required to describe
the intricate interplay between economic, legal and political rationalities and the way
they shape financial regulation and financial criminal law, or to analyse the fine line between legal and illegal on, for example, the capital markets. Research into causation in
the field of financial or corporate crime is also scarce.
The same applies to the reaction to these crimes: how financial regulation comes
about, how institutional and interpretative practices of regulatory authorities, law enforcement agencies, and the courts shape our understanding of what is criminal on the
financial markets and what is not. It is not only state instances that influence the formulation and interpretation of the law: as science and technology studies and the anthropology of financial regulation show, the delicate relationship between discourses in
economics and discourses in legal sciences also play a profound role.
These issues are not only of relevance to criminologists. Criminal law, in the form
of financial criminal law, is a crucial tool for the regulation of financial markets in several
jurisdictions. The effect of criminal law regulation on the marketplace is, however,
poorly understood. How is the threat of criminal prosecution translated, via compliance
and otherwise, into the market and within financial institutions? What effect do judicial
practices, such as plea bargaining (both in civil and common law systems), or civil set-
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tlement have? What is the difference, if there is one, between the threat of criminal
prosecution and civil/administrative enforcement?
Another question to address is the political economy of enforcement. The political economy of financial regulation is a well-researched field in comparative and international political economy: how the differences in corporate governance, corporate finance, the banking system or even the real economy affect the regulatory architecture.
Political science is also beginning to turn its attention, especially in the US, to the empirical research of the regulatory process, from congressional politics all the way down to
organisational practices within regulatory agencies. But we know relatively little about
the political economy of enforcement of financial criminal law. Does, for example, the
investment behaviour of the population, as the well-known discourse of “Wall Street vs.
Main Street” suggest, affect criminal enforcement? Might this be one possible explanation for differences in national enforcement?
For these reasons, our conference takes on the financial crisis from a very broad
perspective, and in a very interdisciplinary setting, bringing together not only scholars of
financial regulation, finance, anthropology, political science, criminology and criminal
law, but also but practitioners: regulators, prosecutors and defense lawyers.
Through this conference, the Max Planck Institute for Foreign and International Criminal Law hopes to foster international interdisciplinary exchange in the
study of regulation and white collar crime, and to provide incentives to further cooperation and research .
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Program
Thursday, 6 September
18:00
Informal Get-Together
Venue: Hausbrauerei Feierling
Welcome by Hans-Jörg Albrecht, director, Max Planck Institute for Foreign and
International Criminal Law
Friday, 7 September
9:00-9:30
Opening Remarks
Hans-Jörg Albrecht, director, Max Planck Institute for Foreign and
International Criminal Law
Introduction and Concept of the Conference
Csaba Györy, Max Planck Institute for Foreign and
International Criminal Law
Panel I. Legal Knowledge and the Governance of Financial
Markets
Chair: Johanna Mugler, University of Bern, Department of Social Anthropology
9:30-10:15
(TBA)
Vincent Antonin Lepinay, Program in Science and Technology,
Massachusetts Institute of Technology
10:15-10:45
Coffee break
10:45-11:30
State of Mind and the Global Financial Crisis
Donald C. Langevoort, Georgetown University Law Center
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11:30-12:15
Against Market Totalitarianism: Thinking Through Legal Technique
Annelise Riles, Cornell University, Department of Anthropology /
Clark Program in East Asian Law and Culture, Cornell University
12:15-13:00
Lunch break (a light lunch is served at the conference venue)
13:00-13:45
Regulatory Reform from a System-Theory Perspective
Marc Amstutz, University of Fribourg (Switzerland), Faculty of Law
Panel II. The Game is against Regulation: Institutional
Culture, Creative Compliance and Financial Governance
Chair: Kerrin-Sina Arfsten, MPICC
13:45-14:30
Too Smart to be Regulated? Wall Street Moralities and White-Collar Crime
Karen Ho, University of Minnesota, Department of Anthropology
14:30-15:15
Rethinking Responsibility for the Financial Crisis: Corporate Culture and the
Role of the Corporate Lawyer
Doreen McBarnet, Professor of Socio-Legal Studies, University of Oxford
15:00-15:30
Coffee break
15:30-16:15
Securities Enforcement as a Social Field
James W. Williams, York University, Department of Social Science
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Panel III. The Political Economy of Regulatory Reform and
Enforcement
Chair: Adepeju Solarin, MPICC
16:15-17:00
Beyond “Light Touch”? Regulatory Responses to the Financial Crisis in AngloAmerica
Paul Langley, Durham University, Department of Geography
17:00-17:45
Too Big to Jail
Neil M. Barofsky, New York University, Center on the Administration of Criminal Law; former Special Inspector General of the Troubled Asset Relief Program
(TARP)
17:45:18:30
Law Enforcement Responses to Financial Crimes since the Financial Crisis
Michel Levi, University of Cardiff, School of Social Sciences
20:00
Dinner
Venue: Restaurant zum Storchen La Cicogna (Schwabentorplatz 7)
Saturday, 8 September
Panel IV. Regulation, Enforcement and the Crisis: The View
from the Practice
Chair: Jing Lin, MPICC
9:00-9:45
Financial Crisis and Financial Regulation in the United States
David Rosenfeld, Associate Director, SEC New York Regional Office
9:45-10:30
Financial Crisis: The Lessons for Regulators
Thomas Eufinger, Chief, Department of Market Surveillance, BaFin
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10:30-11:15
Securities Law Enforcement in the United States After the Crisis
Barry Rashkover, Partner, Sidley Austin LLP, New York
11:15-11:45
Coffee break
Panel IV. Criminal Law as a Means of Regulation?
Chair: Kiyomi von Frankenberg, MPICC
11:45-12:30
Criminal Law as a Means of Regulation in Germany
Klaus Volk, LMU Munich, Faculty of Law
12:30-13:30
Lunch break (a light lunch is served at the conference venue)
13:30-14:15
Prosecuting Financial Crimes in Germany
Michael Bolz, Senior Prosecutor, Frankfurt am Main
14:15-15:00
Prosecuting Financial Crimes in the US
Arlo Devlin-Brown, Assistant US Attorney, District Attorney`s Office for the
Southern District of New York (attendance pending approval)
15:00-15:30
Coffee break
Panel IV. Corporate Crime and the Financial Crisis
Chair: Julia Kasselt, MPICC
15:30-16:15
Corporate Crime on the Global Financial Markets
Wim Huisman, University of Amsterdam, Faculty of Law
16:15-17:00
Corporate Crime and the Financial Crisis in Eastern Europe
Miklos Levay and Eva Inzelt, ELTE University Budapest
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17:00-17:45
General Discussion
Chair: Csaba Györy, MPICC
17:45-18:00
Wrap-Up and Closing Remarks
Hans-Jörg Albrecht
20:00
Dinner
Venue: Restaurant zum Kranz (Herrenstraße 40, 79098 Freiburg)
Contact
Csaba Györy
Max Planck Institute for Foreign and International Criminal Law
Günterstalstraße 73
79100 Freiburg i. Br.
Germany
Tel.: (49) 761 7081 314
Fax: (49) 761 7081 294
c.gyoery@mpicc.de
Cover Picture: Still from the Songs from the Second Floor (Roy Anderson, 2000)
© Studio 24 Roy Andersson Productions