A New Approach to Corporate Criminal Liability

Abstract:     
This article advocates revisiting the current standard for corporate criminal liability. The U.S. Supreme Court and Congress have not addressed the proper standard for the imputation to an employer of the criminal conduct by an employee. Instead, a series of federal appellate court rulings have allowed such imputation even when the conduct is expressly forbidden by the company and the company has taken all reasonable measures to detect and thwart such activity. The author examines the doctrinal underpinings of the criminal law as it relates to corporate liability and concludes that there is no justification for the current parameters of corporate criminal liability. The author advocates a standard that would gear liability to whether a company has taken all reasonable measures to prevent the employee conduct at issue. Such a standard would have the added benefit of encouraging effective compliance measures, while precluding criminal liability when a company has taken all actions that could resonably be expected of it.

Number of Pages in PDF File: 24

Keywords: criminal, corporate, white, collar, employer, employee, liability

JEL Classification: G3, K14, L5

Accepted Paper Series