Wednesday, June 14, 2017
Craig S. Lerner (George Mason University - Antonin Scalia Law School, Faculty) has posted The Trial of Joseph Dotterweich: The Origins of the 'Responsible Corporate Officer' Doctrine (Criminal Law and Philosophy, V. 11, 2017 Forthcoming) on SSRN. Here is the abstract:
This article analyzes the origins of the “responsible corporate officer” doctrine: the trial of Joseph Dotterweich. That doctrine holds that an officer may be personally liable for the criminal act of a subordinate if the officer was, in some indefinite way, able to prevent the violation. Applying this doctrine, the prosecution of Dotterweich entailed strict liability for a strict liability offense. The underlying offenses — the interstate sale of one misbranded and adulterated drug and one misbranded drug — were said to be strict liability offenses. And then, with respect to Dotterweich as the corporation’s general manager, the government argued that he was strictly liable because he stood in “responsible relation” to the company’s acts. The government never tried to prove that the company, Buffalo Pharmacal, was negligent, nor did it try to prove that Dotterweich was negligent in his supervision of the employees of Buffalo Phamacal. The prosecutor and judge were candid about this theory throughout the trial, although the judge conceded that it seemed bizarre and unfair. The defense lawyer repeatedly sought to inject what became known throughout the trial as “the question of good faith,” but was circumvented at almost every turn. What would thus seem to be the crux of any criminal trial — the personal fault of the defendant — was carefully shorn from the jury’s consideration. The government’s theory was so at odds with intuitive notions of liability and blame that as one probes into the case, and looks at the language used in the government’s appellate briefs, imputations of moral fault inevitably creep in. Yet the government was not entitled to make such accusations, as it had pruned moral considerations from the trial.
The article argues that the “responsible corporate officer” doctrine can never enjoy a secure place in our legal system.