Responsibility, Retribution and Remainder: Using Corporate Criminal Liability to Target Blameworthy Corporate Officers and Directors
56 Pages Posted: 2 Sep 2010 Last revised: 19 Feb 2011
Date Written: November 5, 2010
The law’s dominant conception of responsibility is individualist – even where several people commit a wrong together, the law typically assigns responsibility to each participant just to the extent that his or her act has contributed to the injury. Given this general commitment to individual responsibility, it is no surprise that corporate criminal liability has been described by legal scholars as an “embarrassment,” and a violation of a “basic premise of criminal law that guilt requires personal fault.”
Yet our commonsense responses to corporate crime betray the individualist position. Even where we can identify individual perpetrators, we are still sometimes inclined to blame the corporation, arguably because our sense of the wrong exceeds the responsibility borne by the individual perpetrators.
This Article uncovers two dogmatic precepts that account for the divergence between public reactions to corporate crime and scholarly criticism of the doctrine of corporate criminal liability. The Article then seeks to offer a novel rationale for holding corporations criminally responsible – one that takes seriously the suggestion that corporate crime may not always be reduced to the acts of individuals. Thus, the Article proposes that we understand corporate criminal liability as a way of providing voice for that portion of our indignation that cannot be discharged on the individual malefactors. In particular, the Article defends corporate criminal liability as a way of targeting officers and directors who bear responsibility for the corporation’s crime, even if they did not participate in that crime. The Article ends by describing ways in which the sentencing of corporations can be constructed in order to orient blame toward corporate officials.
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