Tuesday, July 5, 2011
Peter J. Henning (Wayne State University Law School) has posted Should the Perception of Corporate Punishment Matter? on SSRN. Here is the abstract:
Corporations are a part of the community and accorded a range of rights similar - although certainly not identical - to those enjoyed by individual members, and so it is natural that they are understood as being bound by the same laws and social norms as any other individual. Yet corporate criminal liability has been criticized because no one individual can be held morally accountable for its misconduct, and therefore the argument has been made that an organization should not be subject to criminal sanctions. Perhaps the most cogent criticism of corporate criminal liability is that the only real punishment available against a corporation is a fine, which can be much more easily calibrated to redress any harm through a civil proceeding that does not require all the protections usually afforded in a criminal prosecution. In this article, presented at the David G. Trager Public Policy Symposium at Brooklyn Law School on “Sharing the Blame: the Law and Morality of Punishing Collective Entities”, I argue that criminal sanctions are appropriate for a corporation when the goal of the criminal prosecution is rehabilitation of the organization to change its corporate culture so that it can more effectively prevent future violations.