How and Why Should the Criminal Law Punish Corporations?

Abstract

Courts established over a century ago that a corporation, like an individual, should be held criminally responsible for its misconduct. Nevertheless, the practice still faces steep resistance rooted in skeptical worries about both the possibility of, and the purpose behind, holding collectives accountable. My dissertation refutes both skeptical worries—and, in doing so, brings together diametrically opposed approaches to corporate regulation.

Chapter I situates the project in its historical context. Regulation of commercial activity originally occurred through corporate law: states looked inside the corporation to oversee its structure, purpose, and even day-to-day managerial decisions. The development of corporate-criminal liability reflects first corporate law’s inability to regulate sophisticated commercial entities and second the inadequacy of the conception of personhood this strategy presupposed. Chapter II draws on contemporary scholarship to offer a pragmatic conception of personhood, one consistent with the nascent conception courts developed to justify the expansion of criminal liability to corporations. On this account, corporations can satisfy stringent prerequisites for legal personhood—in particular, criminal law’s mens rea requirements.

The second half of the dissertation reimagines corporate law as a tool for improving criminal punishment, rather than as a standalone, alternative approach to corporate regulation. Chapter III defends the use of criminal fines against complaints that fines merely harm innocent individuals, and further demonstrates that the State could better deter corporations while minimizing harm to innocents through corporate-law reforms that encourage those inside the corporation to voluntarily shift the distribution of harm towards culpable members. Chapter IV goes further to use corporate-law reform as punishment in and of itself. Among other things, standard objections to reform fall away when relocated from the ordinary commercial context to the rarefied space of criminal punishment. Meanwhile, corporate-reform-as-punishment expresses penological justifications traditionally inapplicable to corporations because of the lack of suitable alternatives to punishments like imprisonment. Incorporating corporate-law reform into our criminal practices thus expands the range of justifications for punishing corporations.