Corporate Criminal Liability: What Purpose Does It Serve?

Abstract

Corporate criminal liability has grown rapidly over the last two decades both in the United States and overseas. Although the imposition of criminal liability on corporations, as opposed to managers or employees, has generated considerable debate, few have questioned in depth the fundamental basis for imposing criminal liability on corporations. After all, corporations cannot be imprisoned. Furthermore, it is not clear that corporate criminal liability is the best way to influence corporate behavior. This paper compares the costs and benefits of corporate criminal liability with the costs and benefits of other possible liability strategies, including various forms of corporate civil liability, managers' personal liability, third-party liability, and administrative sanctions, in an effort to determine the best strategy or mix of strategies for society. After summarizing the historical development of corporate criminal liability and surveying the current legal landscape, the paper examines the justifications for corporate criminal liability liability. The paper argues that corporate civil liability can obtain the desirable features of corporate criminal liability (e.g., criminal liability's powerful enforcement and information-gathering dimensions) while largely avoiding its undesirable features (e.g., criminal procedural protections and criminal sanctions' stigma effects). The paper concludes that a modified form of corporate civil liability could make corporate criminal liability obsolete by garnering the advantages of corporate criminal liability while avoiding or mitigating its disadvantages.