A really interesting discussion with Will Thomas, Uinversity of Michigan Ross School of Business, about the problem of punishing corporations. This raises profound ontological issues: What kind of a thing is a corporation? How do we punish that kind of thing?
See this paper, currently available at SSN, but coming out in the Journal of Corporate Law later this year:
Diamantis, Mihailis and Thomas, William Robert, But We Haven't Got Corporate Criminal Law! (October 11, 2021). 43 J. Corp. L. (2022 Forthcoming), Available at SSRN: https://ssrn.com/abstract=3940447
Abstract: Should the United States retain corporate criminal law? For more than a century, pearl-clutching abolitionists have decried the conceptual puzzles and supposed injustices of corporate criminal liability. Meanwhile, enthusiastic proponents of corporate criminal law have celebrated a system that they believe can deliver justice for victims and effective punishment to corporate malefactors.
The abolitionists won long ago… through craftiness rather than force of reason. By arguing that the United States should get rid of corporate criminal law, abolitionists have staged a debate that presumes corporate criminal law in fact exists. It does not, and it never has. The greatest trick the abolitionist ever pulled was convincing everyone to think otherwise and then duping their opponents into arguing for the status quo.
Criminal justice has four distinctive features. It 1) utilizes uniquely demanding procedure 2) to target the worst offenders with 3) the harshest penalties and 4) society’s deepest moral condemnation. The United States’ purported system of corporate criminal justice lacks all four features. The biggest corporate criminals routinely side-step all criminal procedure and any possibility of conviction by cutting deals with prosecutors, trading paltry fines and empty promises of reform for government press releases praising their cooperation. The real question is not whether the United States should retain corporate criminal law, but what it would take for the United States to have a corporate criminal justice system in the first place.