The Ability and Responsibility of Corporate Law to Improve Criminal Punishment

56 Pages Posted: 10 Feb 2016 Last revised: 3 Sep 2016

W. Robert Thomas

Cleary Gottlieb Steen & Hamilton LLP; University of Michigan Philosophy Department; University of Michigan Law School

Date Written: February 8, 2016

Abstract

The federal government has used criminal fines to punish corporations for as long as it has been punishing corporations. Yet to this day, with more than a century in which to get the punishment right, corporate-criminal fines fail to satisfy virtually any standard justification that underlies criminal punishment.

Attempts to address the failure of corporate-criminal fines founder on two shoals. First, there is a deep and abiding ambiguity about what it means to designate corporate fines as a failed punishment. Second, there is a tendency to see the failure of punishment as a problem for criminal law to solve, and in doing so to treat corporate law as a fixed, immutable feature of the legal background. This particularly is a profound mistake: the failure of corporate-criminal fines is as much a corporate-law problem as it is a criminal-law problem.

Corporate punishment stands at the vanguard of the conceptual and regulatory interplay between corporate and criminal law. At the heart of this conflict is an interaction between drastically different regulatory functions that operate on the basis of conflicting conceptions of the corporation: corporations as persons for criminal law, and corporations as systems for corporate law. While pluralism about the nature of corporation works well when cabined to specific legal domains, corporate-criminal punishment forces these domains, and their competing conception of the corporation, to reconcile or give way.

This Article explores the intimate connections between corporate law and criminal punishment — specifically, how corporate law creates the conditions for, makes necessary, and yet at the same time undermines criminal law’s efforts to punish corporations. Appreciating these interconnections requires understanding not just the conceptual frames implicit to each area of law, but also the historical contingency of associating certain conceptions of the corporation with particular legal domains. To be sure, this project is reform-minded: I consider what it would mean to improve criminal fines through corporate law reforms designed to redistribute the harms attendant to criminal fines in a manner that better aligns the punishment with standard penological aims. That said, the ambition first and foremost is to reveal a blind spot in current discussions of corporate-criminal punishment by drawing attention to the conceptual intricacies that attend a practice — corporate-criminal punishment — that stitches together diametrically opposed conceptions of the corporation.

Keywords: corporate law, criminal law, white-collar crime, philosophy of law, collective agency

Suggested Citation

Thomas, W. Robert, The Ability and Responsibility of Corporate Law to Improve Criminal Punishment (February 8, 2016). Ohio State Law Journal, 2017, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2729590 or http://dx.doi.org/10.2139/ssrn.2729590

William Robert Thomas (Contact Author)

Cleary Gottlieb Steen & Hamilton LLP

United States

University of Michigan Philosophy Department

701 Tappan Street
Ann Arbor, MI 48709-1220
United States

University of Michigan Law School ( email )

625 South State Street
Ann Arbor, MI 48109-1215
United States

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