Condemnation Without Basis: An Expressive Failure of Corporate Prosecutions

51 Pages Posted: 14 Nov 2012 Last revised: 20 Aug 2013

Gregory M. Gilchrist

University of Toledo College of Law

Date Written: November 13, 2012

Abstract

This is the second of two Articles on the expressive aspects of corporate criminal liability. The first Article argued that to justify imposing criminal liability on corporations we must refer to the expressive function of criminal liability. This Article considers the expressive function of actual corporate prosecutions and identifies aspects of corporate prosecutions that generate expressive costs rather than benefits. These are the expressive failures of corporate prosecutions. This Article identifies a number of these failures and introduces a model of perceived legitimacy and the expressive function of punishment that explains how expressive failures harm the legal system. Mere respondeat superior liability — holding corporations criminally liable where there is no basis to condemn the corporation qua corporation — is the most significant expressive failure. It is also the easiest to fix: Allow corporations a good-faith defense against criminal liability. Good faith defenses have been proposed before, but this is the first proposal based on the expressive impact of the defense. A good faith defense will limit the application of corporate criminal liability to those instances where there is a basis to condemn the corporation as a whole, thus realigning the expression inherent in criminal punishment with commonly held views about blaming corporations.

Keywords: Corporate Criminal Liability, White Collar, Legitimacy, Expressivism, Internal View, Good Faith Defense

Suggested Citation

Gilchrist, Gregory M., Condemnation Without Basis: An Expressive Failure of Corporate Prosecutions (November 13, 2012). 64 Hastings Law Journal 1121 (2013); University of Toledo Legal Studies Research Paper No. 2012-23. Available at SSRN: https://ssrn.com/abstract=2175232

Gregory M. Gilchrist (Contact Author)

University of Toledo College of Law ( email )

2801 W Bancroft
MS 507
Toledo, OH 43606
United States
419-530-2712 (Phone)

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