CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Friday, October 22, 2021

Diamantis & Thomas on Corporate Criminal Law

Mihailis Diamantis and W. Robert (Will) Thomas (University of Iowa - College of Law and University of Michigan Ross School of Business) have posted But We Haven't Got Corporate Criminal Law! (43 J. Corp. L. (forthcoming 2022)) on SSRN. Here is the abstract:
Should the United States retain corporate criminal law? For more than a century, pearl-clutching abolitionists have decried the conceptual puzzles and supposed injustices of corporate criminal liability. Meanwhile, enthusiastic proponents of corporate criminal law have celebrated a system that they believe can deliver justice for victims and effective punishment to corporate malefactors.

The abolitionists won long ago… through craftiness rather than force of reason. By arguing that the United States should get rid of corporate criminal law, abolitionists have staged a debate that presumes corporate criminal law in fact exists. It does not, and it never has. The greatest trick the abolitionist ever pulled was convincing everyone to think otherwise and then duping their opponents into arguing for the status quo.

Criminal justice has four distinctive features. It 1) utilizes uniquely demanding procedure 2) to target the worst offenders with 3) the harshest penalties and 4) society’s deepest moral condemnation. The United States’ purported system of corporate criminal justice lacks all four features. The biggest corporate criminals routinely side-step all criminal procedure and any possibility of conviction by cutting deals with prosecutors, trading paltry fines and empty promises of reform for government press releases praising their cooperation. The real question is not whether the United States should retain corporate criminal law, but what it would take for the United States to have a corporate criminal justice system in the first place.

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