Thursday, July 30, 2020
Samuel W. Buell (Duke University School of Law) has posted Retiring Corporate Retribution (Law and Contemporary Problems, Vol. 83, 2020) on SSRN. Here is the abstract:
This Article about retributive theory is aimed at retiring that discussion in the corporate context. Corporate criminal liability should be understood not, as at present, mostly as an instrumentalist matter but entirely as one. By focusing primarily on whether corporations can be blameworthy, that is, deserving of retribution, arguments about corporate retributivism have failed to advance debate to this position. Whether or not corporations can be blameworthy (the better argument shows that they can be), corporations cannot be retributively punished. On any of the major accounts in punishment theory of what must be done to make good on an imperative to deliver retributive desert, corporations cannot be subjects of retributive criminal punishment. In other words, the case for corporate retribution falters not at the stage of desert of punishment but at the stage of punishing in the name of desert. To the extent that retributive discourse nonetheless persists in the field of corporate crime, it is doing instrumental work. Nowhere is this more evident than in the U.S. Department of Justice’s program of enforcing corporate criminal liability.