Tuesday, September 20, 2022

What Would the World Be Like Without Corporate Criminal Law?

Several years ago, this issue’s organizing authors—Professors Mihailis E. Diamantis, John Hasnas, and William S. Laufer—exchanged views on corporate criminal liability at a conference on compliance. This was not the first time that the authors sparred over the future of corporate criminal law at workshops, meetings, and conferences. Noting that the debate about the justification for, and effectiveness of, corporate criminal liability is a century-old, well-worn path, Professor Laufer spoke briefly about the notion of idealized design, and asked the seemingly obvious question: What would the world be like without corporate criminal law? This question prompted a discussion that became the genesis of this Symposium. The idea of musing over abolitionism would necessarily encourage critical thinking about the current state of corporate criminal justice, the long (and somewhat uninspiring) journey here, and just what would be lost if, magically, the most formal of social controls no longer applied to corporations.

 The Wharton School’s Carol and Lawrence Zicklin Center for Business Ethics Research, the Georgetown Institute for the Study of Markets and Ethics, and The Journal of Corporation Law agreed to sponsor a symposium: Imagining a World Without Corporate Criminal Law. We invited many of the world’s leading scholars on corporate criminal liability. Our objective was to leverage the most current thinking from a wide array of ideological, doctrinal, and normative perspectives. This issue of The Journal of Corporation Law reflects that effort.

The Articles in this issue reflect both widespread consensus and radical diversity of opinion. All Articles share an implicit or explicit desire for some kind of accountability for corporate wrongdoing. Some view corporate criminal law ethically as a system for punishing blameworthy entities. Others see it pragmatically as a way to reduce criminal activity in the corporate setting. All agree that the present system of corporate criminal justice is significantly lacking. Even if the contemporary corporate criminal justice system has unique potential (Arlen, Buell), it is ineffective (Baer, Coffee, Diamantis/Thomas, Khanna), counterproductive (Smith, Hasnas), and unjust (Braithwaite, Laufer/de Sousa, O'Sullivan, Sepinwall).

The Articles do, however, diverge over what should be done to address the defects in corporate criminal law. At one end, some would abolish federal corporate criminal liability. They think current efforts to punish corporations are inherently defective. They would redirect prosecutorial energy toward individual wrongdoers within corporations (Hasnas, Smith), increase civil enforcement (Khanna), or place greater reliance on state authorities (Baer).

At the opposite end of the debate are Articles that maintain that an essential social function would be missing in a world without corporate criminal law. Some of these Articles advocate for redoubled efforts to impose criminal sanctions on businesses as collective entities (Arlen, Buell, Laufer/de Sousa, O’Sullivan), while others favor retaining corporate criminal law, but with modifications that would correct perverse incentives (Coffee), attribute liability differently (Sepinwall), constrain corporate punishment (Braithwaite), or unravel corporate exceptionalism (Diamantis/Thomas).

Articles in this issue offer readers a wide window into how the corporate criminal justice system presently (dis)functions, along with diverse views about the prospects for reform. This window is atypical, offering readers insight into, and diagnoses of, corporate criminal theory from original architects of the field, relative newcomers, and everywhere in between.