Saturday, April 16, 2005

Fifth Amendment Privilege for Collective Entities

Lance Cole (Penn State) published an article in the Columbia Business Law Review (here) entitled "Reexamining the Collective Entity Doctrine in the New Era of Limited Liability Entities -- Should Business Entities Have a Fifth Amendment Privilege?".  Lance argues that the Supreme Court's interpretation of the Fifth Amendment that excludes collective entities from asserting the privilege against self-incrimination is outmoded in light of the development over the last twenty years of new limited liability business organizations:

[T]he collective entity doctrine is an anomaly of constitutional criminal law. The exploding use of new forms of limited liability business entities, and the application of the collective entity doctrine to those new entities, necessitates a re-examination of the collective entity doctrine.

Over the past few years, Justices Scalia and Thomas have called for a reassessment of the Court's Fifth Amendment privilege analysis that largely excludes documents from the constitutional protection, and the collective entity doctrine would likely be among those that could be reexamined. (ph)

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