Monday, June 25, 2012
Charles R. P. Pouncy (Florida International University College of Law) has posted Reevaluating Corporate Criminal Responsibility: It's All About Power (Stetson Law Review, Vol. 41, No. 1, 2011) on SSRN. Here is the abstract:
Challenging the neoclassical economic theory that corporate behavior is best governed by the self-regulating process of the free market, this Article maintains that corporations should continue to be subjected to criminal prosecution for violating the law. Stressing the underlying struggle between social and economic institutions to shape our future society, the Author employs institutional economic theory to identify the shortcomings inherent in market-deployed mechanisms as they relate to curtailing corporate criminal behavior. First, the Article details the public mistrust of corporations in light of recent scandals and explores divergent views among academia and practicing attorneys regarding the application of criminal law to artificial entities. Next, the Author examines the relationship of corporations and the criminal law through the lens of institutional economic theory, asserting that financial penalties alone fail to deter corporate criminal activity. The Author rebuffs the claim that individual actors, and not corporations, commit crimes — asserting that corporate cultures tacitly influence the individual actor and thus the entity should bear responsibility for criminal behavior. Finally, the Article suggests assigning criminal liability to corporations is a rational reflection of the public sentiment and eliminating corporations from the ambit of criminal law runs counter to the expectations of society.