Compliance has exploded as a business line and a source of legal employment and scholarly research. Responding to marketplace demand, a substantial number of law schools have instituted courses or programs in compliance, and more are contemplating doing so. Convenient teaching materials are available. Every law school should consider providing instruction on this topic, and should encourage faculty members to become involved in compliance-related research.
Compliance as a Law School Course
The rise of compliance as a law school course raises an obvious question: Where does it fit within the law school curriculum?
The problem is similar to the issue law schools faced a century ago when administrative law developed as an academic and teaching field. Administrative law issues were once taught as part of the law of remedies. But this was obviously not the right category. Administrative law had features of other law school courses – civil procedure, constitutional law, torts, contracts, equity – and it also brought its own unique issues and problems into the mix.
A related problem is now presented with the law of compliance.
The field of compliance has a natural base in administrative law, given that most compliance activities are responses to the actions of administrative agencies. But compliance also has roots in other fields – civil procedure, criminal law, torts, corporate law, tax law, securities law, financial institution law, employment law, health law, and constitutional law, to name only some. Like administrative law – although not on as large a scale – the law of compliance is developing into an independent field of study, owing substantially to its roots in other fields, but also presenting unique issues and problems.
In my view there is no one “right” answer to the question of where compliance fits in a law school’s curriculum, just as there is no “one-size-fits-all” compliance program. A good model, however, is that core concepts can be taught in a first-year or second-year class on the administrative state (a number of law schools already include a required class on the administrative state as part of their core curricula). Compliance could then be offered as a second-year or third-year class.
In addition to the core course, schools may elect to offer specialized classes taught by adjunct professors who practice in the particular field (e.g., health law, import-export law, foreign corrupt practices). As to these, a basic compliance class could be either a prerequisite or a complementary subject that students are encouraged to take if they wish to explore a career path in the compliance space.
This is only one model, however. I have found that compliance can be taught without any exposure to the administrative state – and therefore that it is suitable for LLM students, including foreign students who often express an interest in returning to compliance jobs at home. The compliance course, in short, is quite adaptable to the needs of the particular law school and its students.
Compliance as a New Field of Research
Even as it burgeons as a field of teaching, the study of compliance is being enriched by a growing body of research.
Compliance is a process through which norms of behavior are articulated and enforced within the “black box” of complex organizations — translated into workable standards and procedures that operate differently than public processes of rulemaking and enforcement. Researchers are now seeking to understand how that black box functions and how it could be improved. This new field of research is an exciting development for the academic study of law.
Compliance also raises issues of legitimacy and authority. Prosecutors and civil regulators are leveraging the compliance function to obtain massive new powers. The question arises as to how this development fits within our system of individual rights and limited government. Scholars have only begun to explore the ramifications.
The coming decades should clarify whether the field of compliance is a short term phenomenon that will flourish for a while and then fade away, or whether it represents a durable development that deserves long term recognition within the universe of legal education and research.
Geoffrey Parsons Miller is the Stuyvesant Comfort Professor at NYU Law School, co-director of the law school’s Program on Corporate Compliance and Enforcement, and author of “The Law of Governance, Risk Management and Compliance” (Wolters Kluwer 2014).
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