PUBLISHED:August 13, 2010

Samuel Buell - Scholar of federal criminal law, white-collar, and corporate regulation joins faculty

Sam Buell jokes that his research agenda was neatly summed up in
a New Yorker cartoon depicting two executives examining documents, while one says to the other, “These new regulations will fundamentally change the way we get around them.” Buell, who joins the Duke Law faculty July 1 from the Washington University School of Law in St. Louis, focuses his teaching and scholarship on federal criminal law and white-collar crime and on the regulatory state, particularly the regulation of corporations and financial markets. His scholarly work is informed by his decade of service as an assistant U.S. attorney in the Eastern District of New York and the District of Massachusetts, during which he served as lead prosecutor in multiple complex investigations that involved fraud, racketeering, and public corruption. Buell also served on the Enron Task Force from 2002 to 2004 and headed the investigation that led to the indictment of Jeffrey Skilling, Enron’s chief
executive officer.

His latest project examines how legal doctrine can best target and tame the pervasive problem of legal evasion — the actions of those who actively pursue methods for deriving profit or other benefits that undermine the intent, if not always the letter, of the law, all while escaping sanction. The problem is particularly acute, he observes, in white-collar crime and corporate governance, areas where the people being regulated are at least as sophisticated as lawmakers and regulators, and who are “accustomed to making behavioral decisions in the shadow of the law.” “Here we have individuals who not only are paying close attention to the rules that have been set down, but are designing their behavior with an eye to those rules,” says Buell. “This presents a really difficult challenge for the law. To some extent, every time you make a law, you’re just giving somebody instructions as to how to do what they want to do. “I’m trying to refine doctrine to more accurately identify the cases we’re really trying to get at — the Enron type: sophisticated exploitation and evasion through the accounting and reporting regime, in that case,” he says. And the best way to identify evasion, he argues in “Good Faith and Law Evasion,” forthcoming in the UCLA Law Review, isthrough inquiry into the alleged evader’s mental state. “By focusing on the state of mind by which the individual acts, we are better able to identify the people who are really aware of the fact that what they’re doing is contravening the purpose of the law, even if it’s complying with the letter of the law,” he writes. Identifying evasion in this way, he adds, is far preferable to other methods of addressing the problem, such as frequent rule-making that will inherently be limited and ridden with loopholes due to “lack of legislative foresight,” or crafting broadly worded regulations that may also capture inoffensive behavior or overly impede risk-taking.

Buell offers a conceptual framework for determining which cases and forms of evasion are worth pursuing, noting that efforts to combat evasion should turn on a costbenefit analysis in each case. He posits that the “heart” of the evasion problem is found in fields involving strong norms and high complexity. “Complexity breeds evasion and strong norms produce abundant motivation to do something about it,” he writes, explaining that strong norms offer clarity to the objective of the regulation at hand, making it easier to distinguish between a good-faith — if failed — effort to comply and a purposeful attempt to evade the intent of the law. A member of the American Law Institute, Buell practiced at Covington & Burling in Washington, D.C., before joining the Department of Justice. He later started his academic career at the University of Texas School of Law. Buell visited Duke Law during the 2009–10 school year, teaching Criminal Law and Federal Criminal Law. “Students who were in Sam Buell’s courses know he is a tremendous teacher,” says Dean David F. Levi. “Our students are in for a real treat with him. And it is quite significant that the members of our business faculty are as excited by his addition to our faculty as are our criminal law scholars.”

“This is a terrific catch for Duke,” comments Kate Stith, the Lafayette S. Foster Professor of Law at Yale Law School. “Sam Buell’s scholarship on criminal law is creative, analytically powerful, cutting-edge, and important. He has unusually strong realworld experience, and deep knowledge of the relevant literatures. Because he is highly knowledgeable, acknowledges the contributions of those who preceded him, and proceeds on the assumption that others are acting in good faith (even if their arguments are wanting), his work has great credibility and is highly and deservedly influential.” For his part, Buell says he is delighted to be staying on at Duke. “I care deeply about community, student excellence and engagement, and intellectual culture on a faculty.

Duke Law scores off the charts on all of these,” he said. “This faculty is full of people with whom I fit — in terms of intellectual temperament, fields of research, and practical wisdom and experience. Durham is both lively
and easygoing, providing a great place for our family to live and learn. A happy and productive future awaits.”