Law Enforcement's Lochner

Abstract

Long-established rules of constitutional criminal procedure empower the government to cheaply and efficiently demand information from businesses and corporations, even when those entities are themselves targets of criminal investigations. These rules have become extremely valuable to government investigators, notwithstanding their contestable premises and wide-ranging effects on employees, owners, and consumers.

This ease of access era, however, may be nearing its end. A convergence of changes in how the Supreme Court views Fourth Amendment privacy rights on the one hand, and how it conceptualizes corporate personhood on the other, is apt to trigger an erosion of government enforcement power. At the very moment the Court is poised to recognize stronger protections of personal privacy, it seems equally willing to enlarge the concept of corporate personhood. One need not be clairvoyant to see the ways in which constitutional privacy and corporate personhood’s convergence spells trouble for regulators and prosecutors.

How might federal enforcers respond to this shift? This Article forecasts an array of imperfect enforcement strategies that leave the general public worse off, creating a world in which corporate enforcement gradually grows less frequent and less effective. The upshot of this analysis is therefore a warning. If corporations can generate a First Amendment version of the Court’s 1905 Lochner decision, they can potentially weaponize other constitutional rights. Those worried about the “next Lochner” should therefore turn their attention to the understudied field of corporate constitutional criminal procedure.

Keywords: corporate crime, corporate personhood, private searches, Fourth Amendment, third party doctrine, workplace privacy, collective entity doctrine, self incrimination, Carpenter, Lochner, corporate compliance, deterrence, regulatory enforcement

JEL Classification: K14, K22, K42