The Federalist Society

Commerce and Federal Criminal Law: The Risks of Over-Criminalizing Commercial Regulation

July 30, 2002

George J. Terwilliger III

Good afternoon. We are here today to consider issues of corporate governance. Recent events have generated renewed interest in and highlighted the importance of one aspect of corporate governance, namely, dealing with government enforcement proceedings, including criminal investigations and prosecutions. My purpose today is to discuss a phenomenon that has been a quarter of a century or so in the making: the government’s increased use of criminal law and other punitive enforcement mechanisms to regulate business activity. In so doing, federal criminal law as applied to business has strayed from its core purpose of protecting the means and instrumentalities of commerce to being used as a punitive regulatory tool.

Commerce and Federal Criminal Law: The Risks of Over-Criminalizing Commercial Regulation  


The Federalist Society