The Missing Account of Progressive Corporate Criminal Law

WP 2017-5.0

William S. Laufer

This seems to be an ideal time to revisit the normative, doctrinal, and policy-laden foundations of the corporate criminal law. With renewed calls for a repeal of the most costly of corporate regulations and reforms, it is tempting to speculate about the future of corporate compliance and corporate criminal liability. A host of academics continue to worry about the many hard-to-quantify direct and collateral costs of corporate criminal liability. Regulators and legislators still question whether some financial institutions
are too big to prosecute, take to trial, and convict. The general public fears that justice for those individuals responsible for the global debt crisis will remain undistributed. Entity liability, we are told by the Department of Justice, should take a back seat to individual liability unless justice may not be accomplished otherwise. These conventional intuitions, musings, and fears are found scattered in four relatively distinct ideological camps. First, there are stalwart advocates of both individual and entity liability for “corporate” wrongdoing. For some, corporate social controls are seen as a condition precedent to achieving justice with wayward and rogue capitalists. This camp is agnostic to the idea of corporate personhood, embraces the discretionary use of parallel individual and entity liability, and is not motivated by any particular penal philosophy. What matters is accountability for those responsible in the form of criminal liability.

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