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Wednesday, April 4, 2012

Sheley on Perceptual Harm and the Corporate Criminal

Erin L. Sheley (Georgetown University Law Center) has posted Perceptual Harm and the Corporate Criminal (University of Cincinnati Law Review, Vol. 81, 2013) on SSRN. Here is the abstract:

This article will consider the structure and effects of corporate acts of bribery as an entry point to explore why, notwithstanding its many critics, there are good reasons to retain corporate criminal liability along with individual liability in many circumstances. I will argue, first, that due to shared social intuitions about corporations as personified moral actors, the punishment of corporations along with their executives, if otherwise justified, serves an important expressive function that in turn helps legitimize the criminal justice system by vindicating the intuitions about moral blameworthiness that support it. Second, I will examine the example of the crime of bribery, especially in the context of recent enforcement of the Foreign Corrupt Practices Act (FCPA), to demonstrate how some of the most important substantive harms caused by corporate bribery, including social deterioration and cultural malaise, flow in part from the very networks bribery creates to consolidate power -- real and perceived -- over consumers and other market participants. This consolidation is made possible by the enduring nature of a corporation, which is in turn created by the state and facilitates institutional connections with state power. I argue that a societal judgment of blameworthiness for the corruption of these networks must attach, through criminal sanction, to the collective entities perceived as directly participating in them in order for the perceptual aspects of this harm to be removed and for the adverse effects on the fabric of society remedied. (While corporate criminal punishment must primarily take the form of financial penalties, the expressive stigma of criminal liability in and of itself can serve to disrupt the perceived alignment between the corporate structure and sources of state power.) Third, I will suggest that the same perceptual harms identifiable in the context of bribery can be discerned in many other cases of corporate criminal misconduct, based upon the psychological and cultural effects of a corporation’s enduring nature and institutional connections with state power. Finally, I will argue that, notwithstanding these strong arguments for corporate criminal liability, the bribery cases also demonstrate how the dramatic and variable role of prosecutorial discretion in attaching official blame to corporate harm runs the risk of undermining the expressive value of corporate punishment through an emphasis on consequentialist outcomes. These outcomes, I argue, improperly aggrandize the prosecutor’s ex post remedial role at the expense of redressing the underlying corporate harm.

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