CrimProf Blog

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

Monday, August 1, 2022

Diamantis on Reading the Corporate Mind

Mihailis Diamantis (University of Iowa - College of Law) has posted How To Read a Corporation's Mind on SSRN. Here is the abstract:
To hold corporations liable for most significant harms, the law needs some mechanism for attributing mental states like purpose and knowledge. These mental states serve as proxies for fault that help to distinguish, for example, an unavoidable death from criminal homicide. The traditional policy puzzle has been to say where corporate mental states arise within the corporate structure. This Chapter argues that any such effort is inherently limiting and proposes a paradigm shift for attributing corporate mental states that abandons location as a relevant consideration.

Current law typically places corporate cognition in the heads of individual employees--the corporation thinks what its employees think. Most commentators agree that this approach is too limited because it overlooks emergent psychological phenomena—like cultural dispositions and collective knowledge—that arise from interactions between multiple employees. Some theorists would expand current law to allow that corporate mental states can arise in stable corporate systems and policies as well. Yet even this "systems" approach is too limiting. Like current law, it tries to specify where corporate mental states reside (albeit acknowledging an expanded set of possibilities). Any such account will necessarily overlook corporate fault that arises elsewhere within the corporate structure.

Rather than asking WHERE corporate mental states are, this Chapter argues we should instead ask how we can can INFER what mental state a corporation has. Drawing on the cognitive science of mental state attribution, the Chapter proposes that relevant evidence for judges and juries should include any corporate behavior, whatever its causal source: an individual employee, a corporate system, or something else entirely. Location becomes irrelevant. This "Inference Theory" approach tracks intuitive notions of corporate fault and can identify corporate fault wherever it arises.

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