Corporate Criminal Liability in the United States: Is a New Approach Warranted?

Abstract

This Article traces the origin of Corporate Criminal Liability in the United States, and studies its development over the centuries. The author examines the pros and cons of continuing the current practice, under which the doctrine of strict respondeat superior in the criminal context, created through common law by courts, applies. He also reviews the U.S. Department of Justice's Guidelines for prosecutions of corporations and the criticism that prosecutors' broad discretion can result in abuse. After discussing the reform suggested by critics, he endorses the Model Penal Code approach, which adopts the respondeat superior standard only when there is a clear legislative purpose to impose such liability. Absent such purpose, it applies the "due diligence" standard.