Friday, November 30, 2018
Mihailis Diamantis (University of Iowa - College of Law) has posted Getting Comfortable With Collective Knowledge (Getting Comfortable with Collective Knowledge, Compliance and Enforcement, [URL removed by SSRN] (Oct. 26, 2018)) on SSRN. Here is the abstract:
The collective knowledge doctrine is the foremost contender for patching the deficiencies of respondent superior when it comes to attributing knowledge states to corporations. It has yet to win many supporters, among courts or scholars. This short paper proposes a new diagnosis of the problem. There is an unacknowledged inconsistency between how courts formulate the collective knowledge doctrine and how they apply it. The former is very limited; the latter is potentially very expansive. I argue that the gap between these two variants conceals what is really worrisome about the doctrine — hidden judicial discretion in how knowledge gets attributed corporations. It is only by drawing attention to this discretion and thinking about how to constrain it that the collective knowledge doctrine will have any chance of persuading detractors.