Organizational Liability and the Tension between Corporate and Criminal Law
Journal of Law and Policy, Vol. 19, No. 1, 2010
15 Pages Posted: 27 Sep 2011 Last revised: 13 Jun 2013
Date Written: September 26, 2011
This Essay, written as part of the 2010 Hon. David G. Trager Public Policy Symposium, recasts the corporate criminal liability problem as a tension between corporate and criminal law. On one hand, we would like to use criminal law to exact retribution from corporate entities, express our moral condemnation for the acts that have taken place within and through those entities, and to impose structural reforms that prevent future wrongdoing. Where publicly held corporations are concerned, however, it is difficult to do to impose entity-level criminal liability without also invoking responses from shareholders and innocent employees, who argue quite forcefully that they are not the proper repositories of blame. In response to this critique, some proponents have suggested that shareholders ought to play a greater role in managing the corporation and that criminal liability is valuable insofar as it spurs shareholders to exercise greater oversight over corporate managers. But this question – the role that shareholders ought to play in the management of the publicly held corporation – is not ordinarily the province of criminal law. Rather, it is the preoccupation of corporate law, whose doctrines purposely leave shareholders with relatively little power to run the corporation’s daily affairs. It may be that there is reason to alter this balance of power, but if so, the issue is more appropriately left to the architects of corporate, and not criminal, law.
Keywords: Crime, Corporate Governance, Corporate Crime, Shareholders, Retribution, Prosecutors
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