How can we know whether we are punishing the same corporation that committed some past crime? Though central to corporate criminal justice, legal theorists and philosophers have yet to address the basic question of how corporate identity persists through time. Simple cases, where crime and punishment are close in time and the corporation has changed little, can mislead us into thinking an answer is always easy to come by. The issue becomes more complicated when corporate criminals (...) undergo any number of transformations—rebranding, spinning-off a division, merging, changing ownership, changing management, swapping lines of business, etc. These changes are common among all corporations, including those trying to conceal or limit liability for past crimes. This article takes a first step toward developing a workable and philosophically satisfying theory of corporate personal identity and discusses its prospects for fulfilling the retributive, rehabilitative, and deterrent purposes of criminal law. (shrink)

This article provides a brief introduction to some contemporary challenges found in the intersection of bioethics and international criminal law involving genetic privacy, organ trafficking, genetic engineering, and cloning. These challenges push us to re-evaluate the question of whether the international criminal law should hold corporations criminally liable. I argue that a minimalist and Strawsonian conception of corporate responsibility could be useful for deterring the wrongs outlined in first few sections and in answering compelling objections to (...) class='Hi'>corporate criminal liability. (shrink)

Respondeat superior is a legal doctrine conferring liability from one party onto another because the latter stands in some relationship of authority over the former. Though originally a doctrine of tort law, for the past century it has been used within the criminal law, especially to the end of securing criminal liability for corporations. Here, I argue that on at least one prominent conception of criminal responsibility, we are not justified in using this doctrine in this way. (...) Firms are not answerable for the crimes committed by their employees, because firms cannot answer as to why the crime was committed; they lack the authority to offer the employee’s reasons for action. Though this rules out respondeat superior as a general principle, I show contexts in which vicarious liability is still appropriate in the criminal law, and I respond to a number of other concerns raised by this picture. (shrink)

Acting as part of a corporation may allow an individual more easily to rationalize participating in a harmful act, but there are countervailing forces in corporate action that increase moral oversight and accountability. Making use of group agency to explain membership as a special feature of some corporate agents, I argue that when someone becomes a member of an organized group like a company, their own moral responsibility becomes entangled with the decisions of other members of the company, (...) whether or not they intend this effect. This moral entanglement in corporate decision-making explains why individuals have a moral obligation to act in their role as a corporate officer when they would not have an obligation to act in a personal capacity even if they had identical knowledge. The entanglement affects the individual’s own moral status and the moral status of the company itself. Moral entanglement of corporate decision-makers provides a principled explanation for a rule that is present in corporate criminal law that corporate officers with knowledge that another employee is about to commit a crime must actively intervene, and cannot rely on their status as bystanders. (shrink)

A correction to this paper has been published: https://doi.org/10.1007/s10551-021-04827-y.

The originality of this volume lies in the interdisciplinary synergies that emerge through the issues it explores and the approaches it adopts. It offers legal and ethical reflections on the criminal qualification of a series of conducts ranging from human experimentation and non-consensual medical interventions to organ transplant trafficking and marketing of human body parts. It also considers procedural matters, notably related to psychiatric and medical evidence. In so doing, it combines legal and other types of conceptualizations to examine (...) such contemporary issues as rights of the LGBTIQ population, access to medical care, corporate criminal liability, rights of children and Islamic jurisprudence. (shrink)

According to the Finnish Penal Code a corporation may be sentenced to a corporate fine if a person who is part of its statutory organ or other management or who exercises actual decision-making authority therein 1) has been an accomplice in an offence or allowed the commission of the offence, or 2) if the care and diligence necessary for the prevention of the offence has not been observed in the operations of the corporation. Criminal liability of legal persons (...) is based on the intentional or negligent acts of individuals who are in a certain relationship with the corporation. The Finnish legal doctrine clearly rejects the identification theory according to which an individual is considered as acting not for a company but as a company. According to Finnish scholarly writings, the acts of an individual offender could be attributed to the legal person under certain conditions not as acts of the legal person but as acts of the individual for the company. Nonetheless, Finnish law does not abandon the fault requirement. In this respect, Finnish law differs from the traditional common law theory of vicarious liability. (shrink)

The willful ignorance doctrine says defendants should sometimes be treated as if they know what they don't. This book provides a careful defense of this method of imputing mental states. Though the doctrine is only partly justified and requires reform, it also demonstrates that the criminal law needs more legal fictions of this kind. The resulting theory of when and why the criminal law can pretend we know what we don't has far-reaching implications for legal practice and reveals (...) a pressing need for change. (shrink)

I examine how deferred-prosecution agreements employed against suspected corporate criminality amount to a form of social engineering that infringes the presumption. I begin with a broad understanding of the presumption itself. Then I offer a brief description of how these agreements function. Finally I address some of the normative issues that must be confronted if legal philosophers who hold retributivist views on punishment and sentencing hope to assess this device. My judgment tends to be favorable. More importantly, I caution (...) against the facile assumption that any means to infringe the presumption is necessarily an illegitimate part of penal practice. (shrink)

The 3rd Report of the Special Representative of the Secretary-General of the United Nations appears to have generated significant consensus around its approach to business and human rights. This state of harmony relies mainly upon a narrow mandate limiting the endeavour largely to a mapping exercise. It also relies upon a process of 'operationalisation' that is yet to be undertaken despite the recent release of a 4th Report. After a brief presentation of the main parameters of the framework proposed by (...) the 3rd Report and of its precarious advantage over other similar initiatives, this article takes a close look at the main link that needs to be operationalised: i.e. the link between corporate responsibility for human rights and the concept of legal and criminal responsibility. The article then addresses the constitutive elements of the concept of responsibility to shed light upon the responsibility of business organisations in a human rights law context. It looks at the innovative ways in which the concept of corporate criminal responsibility has been dealt with in various domestic jurisdictions and at the new paradigms of corporate agency resulting in the process. Building on this inquiry, the analysis focusses on the way in which the legal discourse acquires new dimensions of corporate responsibility by moving away from an individualistic perspective. On the basis of this, the article suggests conceptual tools that can become instrumental in the process of the operationalisation of the 3rd Report, albeit at the likely cost of rendering the consensus around it more fragile. (shrink)

The Law Society recently published a practice note titled 'Prosecutions of victims of trafficking'. This practice note comes many years after many lawyers had highlighted the problem and after the government machinery had chuntered into action and passed the UK Modern Slavery Act 2015 with explanatory notes and non-statutory guidelines for corporations. Since 2012 there had been issued warnings about the way defence lawyers, the Crown Prosecution Service and the UK police were dealing with trafficking and the Criminal Cases (...) Review Commission as far back as 2012 had note the severe failings by defence solicitors, prosecution and police, leading to many appeals and potential miscarriages of justice. Even in 2012 there were 946 known human trafficking victims, including 234 children. There was an attempt at a Human Trafficking Bill in 2010 which came to a halt and several reports including one by the Prison Reform Trust and Cambridge University Press, notwithstanding many books by notable academics for many years before today. This article examines the inadequacies of the Law Society practice note on defending victims and the jumble of high-ideals but short-sighted and impractical parts of the UK Modern Slavery Act 2015. (shrink)

Corporate violations of the law are occurring with increasing frequency and with increasing public attention. Solutions to date have proved ineffectual because of the problem of determining whom is to be punished for the offense of the corporation. Instead of individual jail terms or corporate fines, we propose that the dissolution of the corporation be considered as a more effectual means of conforming corporate behavior to the norms of the legal system.

The responsible corporate officer doctrine is, as a formal matter, an instance of strict criminal liability: the government need not prove the defendant’s mens rea in order to obtain a conviction, and the defendant may not escape conviction by proving lack of mens rea. Formal strict liability is sometimes consistent with retributive principles, especially when the strict liability pertains to the grading of an offense. But is strict liability consistent with retributive principles when it pertains, not to grading, (...) but to whether the defendant has crossed the threshold from noncriminal to criminal conduct? In this essay, I review the two most plausible arguments supporting an affirmative answer in the context of the RCO doctrine. First, perhaps this doctrine reflects a rule-like form of negligence, akin to a rule that prohibits selling alcohol to a minor. Second, perhaps this doctrine expresses a duty to use extraordinary care to prevent a harm. Neither argument is persuasive. The first argument, although valid in some circumstances, fails to explain and justify the RCO doctrine. The second argument, a duty to use extraordinary care, is also inadequate. If “extraordinary care” simply means a flexibly applied negligence standard that considers the burdens and benefits of taking a precaution, it is problematic in premising criminal liability on ordinary negligence. If instead it refers to a higher duty or standard of care, it has many possible forms, such as requiring only a very slight deviation from a permissible or justifiable standard of conduct, placing a “thumb” on the scale of the Learned Hand test, identifying an epistemic standard more demanding than a reasonable person test, or recognizing a standard that is insensitive to individual capacities. However, some of these variations present a gratuitous or incoherent understanding of “negligence,” and none of them sufficiently explain and justify the RCO doctrine. (shrink)

Some progress has been made in recent decades to articulate corporate social responsibility (CSR) and, more recently, to associate CSR with international enforcement of human rights. This progress continues to be hampered, however, by the ability of a multinational corporation (MNC) that violates human rights not only to shift liability from itself to a nation-state but even to win compensation from that nation-state for loss of profits due to restrictions on its business activities. In the process, the nation-state’s sovereignty (...) is diminishing; and, in effect, though still attributed to nation-states, it is being transferred to the MNC. The main aim of this article is (1) to draw on normative considerations to claim that this MNC proto-sovereignty should be modified and (2) to contend that this can eventually be accomplished by adding to corporate adoption of CSR guidelines a regimen of global human rights enforcement. I base this contention on expectations about the internationalization of corporate criminal law and the globalization of civil society in general and of NGOs in particular. I consider various jurisdictions but I focus on US jurisprudence. (shrink)

Catholic doctrine’s strict prohibition on abortion can lead clinicians or institutions to conscientiously refuse to provide abortion, although a legal duty to provide abortion would apply to anyone who refused. Conscientious refusals by clinicians to end a pregnancy can constitute murder or reckless homicide under American law if a woman dies as a result of such a refusal. Such refusals are not immunized from criminal liability by the constitutional right to the free exercise of religion or by statutes that (...) confer immunity from criminal homicide prosecution. Core principles of the rule of law require the state to protect the lives of all persons equally and to place the life and health of persons above any the interests of providers have in moral integrity or in respecting the moral status of prenatal humans. In some states criminal liability related to conscientious objection also applies to corporate hospital officials. (shrink)

This essay is about the United States Supreme Court's discursive creation of two kinds of persons, one corporate the other criminal, during its 1886 term. The aim is to contrast the Supreme Court's construction of corporate personhood in County of Santa Clara v. Southern Pacific Railroad with its view of the criminal's body in Ex parte Royall, a habeas corpus case. The Court's purpose in deciding these two cases was to design a way to disperse newly (...) emergent and conflicting interests in particular directions within the judicial apparatus. The result is that both criminal and corporate bodies come to be understood through discourse, not outside of it. So the body which is being introduced can be described as a discursive body, not as an anatomical given. (shrink)

This article considers what policy reforms may help catalyze corporate commitment to combating corruption. The starting point for this discussion is a voluntary, corporate principles approach to self-regulation. Such an approach should seek to encourage corporations to implement effective compliance and ethics programs and to disclose information related to their anti-corruption activities to relevant stakeholders. Although a corporate principles approach is a private initiative, there is a significant role for the public sector. This article discusses some of (...) the ways that the public sector can support and further the goals of a corporate principles approach to combating corruption. The reforms discussed in this article include amnesty programs for corporations that self-disclose corrupt payments, the use of corporate monitors in the enforcement of anti-corruption laws, expanding the definition of corruption in criminal laws, sustainability reporting indicators related to bribery, and the implementation of multi-stakeholder initiatives to support a corporate principles approach. (shrink)

This article considers the question of whether corporate entities can benefit from the criminal-law defence of duress. The excuse of duress is accorded in recognition of the defendant’s extreme fear of a threatened consequence, and it is unclear whether corporate entities—as distinct from their members—can experience fear. Many proponents of corporate rationality deny that corporations can have emotional states. I argue that corporations can experience the fear that is necessary to ground a claim of duress, but (...) that the law should only allow fear to excuse coerced corporate action in a narrow set of circumstances. (shrink)

Australia is second only to Israel in being the world’s most culturally diverse nation, based largely on high levels of immigration in the second part of the 20th century. From the 1970s onwards, Australia formally recognized the massive social changes brought about by postwar immigration, and provided legislation to incorporate cultural diversity into everyday lives. One such ‘legislative’ enactment saw the establishment of multicultural broadcasting in Australia, as arguably a world-first, both in its comprehensiveness and diversity. Today, Australia has a (...) public sector corporation, the Special Broadcasting Service, administering five radio services in 68 languages. Also, the Community Radio sector produces multicultural programming in 100 languages through a number of its 330 broadcast and 207 narrowcast stations. This article examines the relationship between radio and its communities. It argues that despite the ‘profile’ of SBS television, radio is much closer to its constituent communities, and therefore plays a greater role in enabling those communities to speak their own histories, beyond the confines of a consensual Anglophile paradigm. (shrink)

Corporate behaviour is often regulated through the criminal law by means of reverse onus offences. Such offences are alleged to involve violations of the Presumption of Innocence. Such allegations almost always assume natural persons as defendants. The arguments supporting reverse onus offences are typically instrumental, to do with the importance of the social goals promoted and the ease of proof. The Presumption of Innocence is taken to be an autonomy right of natural persons and so not subject to (...) being sidelined for reasons of law enforcement expediency. Corporations, however, are not natural persons: they have no autonomy right not to be treated as means. It may well be, then, that reverse onus offences are justified in the case of corporate defendants. I argue that the Presumption is not violated by such offences in the case of corporate defendants. I develop a broad concept of the criminal justice system as an allocative system, and argue that reverse onus offences properly allocate the burden of proof for corporations. Specifically, I argue that the normative demand for legal innocence is sufficiently met by the availability of a due diligence defence; that the responsibility of corporations when prohibited harms occur is properly a form of outcome-responsibility; and that taking into account issues of reciprocity, legitimacy and power reverse onus offences justly allocate the burden of proof in the case of corporate defendants. (shrink)

This paper aims to contribute to the goal of finding influential legal precedents by quantitative methods. A lot of work has been made in this direction worldwide, especially in the context of common law jurisdictions. However, this type of work is extremely scarce in the Brazilian literature. In addition, our work also contributes to the research of network analysis and the law by applying these methods to unprecedented amount of data and narrowing our inquiry to a single law area, (...) class='Hi'>corporate law. Furthermore, whereas most of the literature applying network analysis to judicial decisions had access to readily available data on the citations to precedent within each ruling, our raw data was nothing but the full text of decisions. We focus on data produced by the Superior Court of Justice, the highest court in Brazil for matters of federal law, including statutory interpretation of civil, criminal and corporate law. The Court issued an astonishing 282040 opinions tagged as related to corporate law between 2008 and 2018. This amount of cases is unparalleled internationally for superior courts and for studies in network analysis and law. In our results, we rank precedents quantitatively based on the citations they receive and make. We also qualitatively analyze some of the results, especially related to groups identified in the network with the Modularity algorithm. Our findings also reveal that corporate law jurisprudence in the STJ is quantitatively dominated by a few legal issues around one single theme that is only tangentially related to corporate law. That is, a type of contract used for the expansion of telephone landlines, which also allowed the consumer to become a shareholder of the telecommunication company. This comparison is especially pertinent because the utter lack of data on the quantitative weight of STJ precedents means the national literature has been operating in a void of objective measurements, one which has been filled with cherry-picked rulings and subjective ranking criteria. (shrink)

In this article, I ask whether the state, as opposed to its individual members, can intelligibly and legitimately be criminalized, with a focus on the possibility of its domestic criminalization. I proceed by identifying what I take to be the core objections to such criminalization, and then investigate ways in which they can be challenged. First, I address the claim that the state is not a kind of entity that can intelligibly perpetrate domestic criminal wrongs. I argue against it (...) by building upon an account of the modern state as a moral agent proper, capable of both culpable moral and legal wrongdoing. I then consider objections to the intelligibility and legitimacy of subjecting states to domestic criminal processes, which primarily find their source in the assumption that such subjection would necessarily involve the state prosecuting, judging, and punishing itself. I argue that whether this (questionable) assumption is sound or not, it does not create the kinds of unsolvable quandaries its exponents think it does. I then move on to reject the distinct, yet related, objection that, at least in aspiring liberal jurisdictions, treating the state as a criminal objectionably involves extending to it various substantive and procedural guarantees that, given its nature and raison d’être, it should not have. Finally, I discuss three central objections to punishing the state. First, that organizations like states do not have the phenomenal consciousness required to suffer punishment. Second, that the constant possibility of dispersion of state punishment amongst individual members stands in the way of its justification. Lastly, that whatever justification there may be for making things harder for the state in response to its culpable wrongdoing, such treatment need not be understood as punishment. While partially conceding the strength of these objections, I strive to loosen their grip in ways that show that justified punishment of the state, meaningfully understood as such, remains a distinct possibility. I conclude by contrasting supposed alternatives to the criminalization of states, and by contending that my analysis leaves us with enough to keep the possibility of state criminalization on the table as a justifiable response to state wrongdoing. (shrink)

Some societies used to impose liability on inanimate objects, a practice we’d now regard as silly and confused. When we punish corporations today, are we making similar mistakes? Here I consider some important sources of philosophical skepticism about imposing criminal liability on corporations, and I argue that they admit of answers, which places punishing corporations on stronger footing than punishing inanimate objects. First, I consider the eligibility challenge, which asserts that corporations are not the right kind of thing to (...) be punished. Second, the reductionist challenge insists that corporate culpability always reduces to individual culpability. I suggest that progress can be made in addressing these challenges by asking the right law-focused questions and attending to recent developments in criminal law theory and moral philosophy. (shrink)

In many cases of criminality within large corporations, senior management does not commit the operative offense—or conspire or assist in it—but nonetheless bears serious responsibility for the crime. That responsibility can derive from, among other things, management’s role in cultivating corporate culture, in failing to police effectively within the firm, and in accepting lavish compensation for taking the firm’s reins. Criminal law does not include any doctrinal means for transposing that form of responsibility into punishment. Arguments for expanding (...) doctrine—including broadening of the presently narrow “responsible corporate officer” doctrine—so as to authorize such punishment do not fare well under the justificatory demands of criminal law theory. The principal obstacle to such arguments is the large industrial corporation itself, which necessarily entails kinds and degrees of delegation and risk-taking that do not fit well with settled concepts about mens rea and omission liability. Even the most egregious and harmful management failures must be addressed through design and regulation of the corporation rather than imposition of individual criminal liability. (shrink)

While most discussions of corruption focus on administration, institutions, the law and public policy, little attention in the debate about societal reform is paid to the “internalities” of anti-corruption efforts, specifically to character-formation and issues of personal and corporate integrity. While the word “integrity” is frequently mentioned as the goal to be achieved through institutional reforms, even in criminal prosecutions, the specifically philosophical aspects of character-formation and the development of corporate and individual virtues in a rational and (...) systematic way tend to be neglected. This paper focuses on the “internalities” of anti-corruption work with special emphasis on the pre-requisites that need to be ensured on behalf of the social elites in order for proper individual and collective character- formation to take place throughout the society. The author argues that a systematic pursuit of socially recognised virtues, both those pertaining to society as a whole and those specific to particular professions and social groups, is the most comprehensive and strategically justified way of pursuing anti-corruption policy, while institutional and penal policies can only serve an auxiliary role. The pursuit of institutional and criminal justice policies against corruption in a society that is subject to increasing relativism with regard to values and morality is at best ineffective, and at worst socially destructive. Thus the paper suggests a re-examination of the social discourse on the level of what the author calls “value strategy” and the gradual building of a plan to create and solidify specifically designed features of “corporate character” for key sectors of the society. This approach can serve as the main long-term strategy to improve the public profile of integrity and reinforce morality in both the public and civil sectors. (shrink)

This article examines how the so-called disembodied criminal subject is given structure and form through the law of homicide and assault. By analysing how the body is materialised through the criminal law’s enactment of death and injury, this article suggests that the biological positioning of these harms of violence as uncontroversial, natural, and universal conditions of being ‘human’ cannot fully appreciate what makes violence wrongful for us, as embodied entities. Absent a theory of the body, and a consideration (...) of corporeality, the criminal law risks marginalising, or altogether eliding, experiences of violence that do not align with its paradigmatic vision of what bodies can and must do when suffering its effects. Here I consider how the bionic body disrupts the criminal law’s understanding of human violence by being a body that is both organic and inorganic, and capable of experiencing and performing violence in unexpected ways. I propose that a criminal law that is more receptive to the changing, technologically mediated conditions of human existence would be one that takes the corporeal dimensions of violence more seriously and, as an extension of this, adopts an embodied, embedded, and relational understanding of human vulnerability to violence. (shrink)

In a provocative essay, philosopher Jeffrie G. Murphy asks: 'what would law be like if we organized it around the value of Christian love, and if we thought about and criticized law in terms of that value?'. This book brings together leading scholars from a variety of disciplines to address that question. Scholars have given surprisingly little attention to assessing how the central Christian ethical category of love - agape - might impact the way we understand law. This book aims (...) to fill that gap by investigating the relationship between agape and law in Scripture, theology, and jurisprudence, as well as applying these insights to contemporary debates in criminal law, tort law, elder law, immigration law, corporate law, intellectual property, and international relations. At a time when the discourse between Christian and other world views is more likely to be filled with hate than love, the implications of agape for law are crucial. (shrink)

Many criminal law scholars have criticized the responsible corporate officer doctrine as a form of strict and vicarious liability. It is neither. It is merely a doctrine that supplies a duty in instances of omissions. Siding with Todd Aagaard in this debate, I argue that a proper reading of the cases yields that the responsible corporate officer doctrine is just duty supplying, and does not allow for strict liability when the underlying statute requires mens rea. After analyzing (...) Dotterweich, Park, and their progeny, I probe the depths of this duty-supplying doctrine, including to whom the duty is owed, whether the duty is grounded in statute, cause of peril, or contract, and what the content of the duty is. Although the responsible corporate officer doctrine unveils questions we may have about duty generally, it is no more problematic than other duty-supplying doctrines in the criminal law. (shrink)

This book argues that there is a strong normative argument for using the criminal law as a primary response to corporate crime. In practice, however, corporate crimes are rarely dealt with through criminal sanctioning mechanisms. Rather, the preference – for both prosecutors and corporates – appears to be on negotiating out of the criminal process. Reflecting this emphasis on negotiation, this book examines the use of Civil Recovery Orders and Deferred Prosecution Agreements as responses to (...) corporate crime, and discusses a variety of UK case studies. Drawing upon legal and criminological backgrounds, and with an emphasis on the conceptual frameworks of ‘negotiated justice’ and ‘legitimacy’, the authors examine the law, policy and practice of these enforcement responses. They offer an original, theoretically-informed analysis which is accessible to practitioners and researchers. (shrink)

While most discussions of corruption focus on administration, institutions, the law and public policy, little attention in the debate about societal reform is paid to the?internalities? of anti-corruption efforts, specifically to character-formation and issues of personal and corporate integrity. While the word?integrity? is frequently mentioned as the goal to be achieved through institutional reforms, even in criminal prosecutions, the specifically philosophical aspects of character-formation and the development of corporate and individual virtues in a rational and systematic way (...) tend to be neglected. This paper focuses on the?internalities? of anti-corruption work with special emphasis on the pre-requisites that need to be ensured on behalf of the social elites in order for proper individual and collective character-formation to take place throughout the society. The author argues that a systematic pursuit of socially recognized virtues, both those pertaining to society as a whole and those specific to particular professions and social groups, is the most comprehensive and strategically justified way of pursuing anti-corruption policy, while institutional and penal policies can only serve an auxiliary role. The pursuit of institutional and criminal justice policies against corruption in a society that is subject to increasing relativism with regard to values and morality is at best ineffective, and at worst socially destructive. Thus the paper suggests a re-examination of the social discourse on the level of what the author calls?value strategy? and the gradual building of a plan to create and solidify specifically designed features of?corporate character? for key sectors of the society. This approach can serve as the main long-term strategy to improve the public profile of integrity and reinforce morality in both the public and civil sectors. Aktuelne rasprave o korupciji vecinom su usredsredjene na pitanja o administraciji, institucijama, pravu i javnoj politici. Istovremeno, nedovoljno paznje se poklanja raspravi o unutrasnjim faktorima antikorupcijskih napora u drustvenim reformama. S jedne strane, rec?integritet? se cesto pominje kao cilj koji institucionalnim reformama treba postici. S druge strane, medjutim, specificno filozofski aspekti formiranja karaktera i razvijanja korporativnih i individualnih vrlina, na racionalan i sistematski nacin, uglavnom se zanemaruju. Ovaj tekst se bavi unutrasnjim faktorima antikorupcijskog delovanja, sa posebnim naglaskom na pretpostavke formiranja individualnog i kolektivnog karaktera cije je ostvarivanje u rukama drustvenih elita. Autor argumentise da je sistematsko unapredjivanje drustveno prepoznatih vrlina, kako onih koji se odnose na celo drustvo, tako i onih koje su specificne za pojedine profesije i drustvene grupe, najobuhvatniji i strateski najopravdaniji nacin za sprovodjenje antikorupcijske politike, dok institucionalna, a posebno kaznena politika, mogu igrati samo dopunsku ulogu. Naglasavanje institucionalne, a posebno krivicno-pravne politike, u jednom drustvu koje inace karakterise moralni i vrednosni relativizam, u najboljem slucaju je neefikasno, a u najgorem slucaju drustveno destruktivno. Stoga se u tekstu sugerise preispitivanje drustvenog diskursa na nivou onoga sto autor naziva?vrednosnom strategijom? i postepena izgradnja i ucvrscivanje posebno odredjenih aspekata?korporativnog karaktera? za pojedine kljucne sektore drustva. Ovaj pristup moze biti dugorocna drustvena strategija za unapredjivanje javnog profila integriteta i za jacanje morala kako u javnom, tako i u privatnom i gradjanskom delu drustva. (shrink)

Although vicarious liability for the acts of co-conspirators is firmly entrenched in federal courts, no adequate theory explains how the act and intention of one conspirator can be attributed to another, simply by virtue of their criminal agreement. This Article argues that the most promising avenue for solving the Pinkerton paradox is an appeal to the collective intention of the conspiratorial group to commit the crime. Unfortunately, misplaced skepticism about the notion of a group will has prevented criminal (...) scholars from embracing the notion of a conspiracy's collective intention to commit a crime. However, positing group intentions requires only that the criminal law recognize the rational relationships between individuals who decide to collectivize reason to pursue a common criminal goal; no burdensome theory of corporate animals with unified minds is required. After exploring the different rational structures that a conspiracy can have, the Article outlines the circumstances when vicarious liability could be justified. Specifically, liability must be limited to participants in tightly knit conspiracies who engage in the kind of common deliberation that is capable of yielding collective intentions. A further consequence of this theory is that liability must be restricted to acts that fall within the scope of the criminal plan, not just acts that should have been reasonably foreseeable to members of the conspiracy. (shrink)

Criminal law as public law -- Criminal law as public law -- Criminal law as public law -- Mass incarceration and the theory of punishment -- Reasons to criminalize -- Formalism and pragmatism in criminal procedure -- Responsibility without resentment.

This is a reprint of a book first published by Little, Brown in 1978. George Fletcher is working on a new edition, which will be published by Oxford in three volumes, the first of which is scheduled to appear in January of 2001. Rethinking Criminal Law is still perhaps the most influential and often cited theoretical work on American criminal law. This reprint will keep this classic work available until the new edition can be published.

This article deals with the gamut of international law. Empirical research on international law, charts three main factors—states and bureaucracies, private actors, and international institutions, specifically international tribunals. International law maintains the centrality of the state, which is also the functioning ground for various sub-state structures, governmental actors, and institutions. Private actors such as corporations and non-governmental organizations are instrumental in influencing the construction and outcome of international law. Regarding the relevance of international laws, some opine that while states do (...) infact deliver on obligations, they only choose those that are easy to comply by. Hence, efficiency becomes doubtful. Further, it is claimed that state's compliance only reflects its intentions, not a behavioral shift. These opinions merit questions regarding the relevance of international law. Studies in this field concern, broadly, international human rights law, criminal law, war laws, trade laws, investment law, and regulatory laws. (shrink)

This article defends skepticism about the moral agency of corporations, arguing that even if we accept the idea that there exist group moral agents, it makes little sense to suppose that the corporation itself can qualify as such an agent. The discussion considers and rejects arguments from Philip Pettit, Peter French, and Michael Bratman. It concludes that we should not criminally prosecute corporations.

This article analyzes the origins of the “responsible corporate officer” doctrine: the trial of Joseph Dotterweich. That doctrine holds that an officer may be personally liable for the criminal act of a subordinate if the officer was, in some indefinite way, able to prevent the violation. Applying this doctrine, the prosecution of Dotterweich entailed strict liability for a strict liability offense. The underlying offenses—the interstate sale of one misbranded and adulterated drug and one misbranded drug—were said to be (...) strict liability offenses. And then, with respect to Dotterweich as the corporation’s general manager, the government argued that he was strictly liable because he stood in “responsible relation” to the company’s acts. The government never tried to prove that the company, Buffalo Pharmacal, was negligent, nor did it try to prove that Dotterweich was negligent in his supervision of the employees of Buffalo Pharmacal. The prosecutor and judge were candid about this theory throughout the trial, although the judge conceded that it seemed bizarre and unfair. The defense lawyer repeatedly sought to inject what became known throughout the trial as the “question of good faith,” but was circumvented at almost every turn. What would thus seem to be the crux of any criminal trial—the personal fault of the defendant—was carefully shorn from the jury’s consideration. The government’s theory was so at odds with intuitive notions of liability and blame that, as one probes into the case, and looks at the language used in the government’s appellate briefs, imputations of moral fault inevitably crept in. Yet the government was not entitled to make such accusations, as it had pruned moral considerations from the trial. The article argues that the responsible corporate officer doctrine can never enjoy a secure place in our legal system. First, the doctrine is at a minimum in tension with, and often in direct opposition to, basic principles of the criminal law; and second, the doctrine fails, when followed to its logical conclusions, to accord with basic notions of fair play. The article concludes that the responsible corporate officer doctrine is either unnecessary, in cases in which the evidence establishes personal fault, or unjust, in cases in which it creates liability in the absence of personal fault through the unspecified notion of “responsibility.” The Dotterweich case illustrates what is contemplated by the latter possibility, and why it is problematic in any judicial system that purports, in the words of the Model Penal Code, “to safeguard conduct that is without fault from condemnation as criminal.”. (shrink)

This Major Reference series brings together a wide range of key international articles in law and legal theory. Many of these essays are not readily accessible, and their presentation in these volumes will provide a vital new resource for both research and teaching. Each volume is edited by leading international authorities who explain the significance and context of articles in an informative and complete introduction.

The goal of improving public health involves the use of different tools, with the law being one way to influence the activities of institutions and individuals. Of the regulatory mechanisms afforded by law to achieve this end, criminal law remains a perennial mechanism to delimit the scope of individual and group conduct. However, criminal law may promote or hinder public health goals, and its use raises a number of complex questions that merit exploration. This examination of the interface (...) between criminal law and public health brings together international experts from a variety of disciplines, including law, criminology, public health, philosophy and health policy, in order to examine the theoretical and practical implications of using criminal law to improve public health. (shrink)

Imagine the following. You have been asked to critically evaluate the criminal process in your home jurisdiction. In particular, you have been asked to determine whether the criminal process currently in place appropriately balances the need to maximize the chances of getting things right—of acquitting the innocent and convicting the guilty—with the need to minimize the chances of getting things wrong—of acquitting the guilty and convicting the innocent. How would you proceed? What rules of evidence and procedure would (...) you put in place? Would you exclude germane inculpatory evidence that has been obtained in violation of the accused’s constitutional rights? Would you permit spouses to testify against each other, or allow the jury to draw adverse inferences from an accused’s failure to testify on his or her behalf? These are the sorts of epistemological issues addressed by Larry Laudan in his superb Truth, Error, and Criminal Law. The purpose of legal epistemology is to identify legal rules in order to assess them rationally, and, if necessary, to modify or replace them. The more and more widely Truth, Error, and Criminal Law is read, the more likely it is that legal epistemology will attract the attention of lawyers, legal academics, and philosophers, attention that can only contribute in a positive way to rethinking criminal law. (shrink)

This is a review of Larry Alexander and Kim Ferzan’s _Reflections on Crime and Culpability_, a sequel to the authors’ _Crime and Culpability_. The two books set out a sweeping proposal for reforming our criminal law in ways that are at once commonsensical and mindbogglingly radical. But even if one is not on board with such a radical experiment, simply thinking it through holds many unexpected lessons: startlingly new insights about the current regime and about novel ways of doing (...) legal theory, some of which are explored in this essay. (shrink)

Criminal law exceptionalism, or so I suggest, has turned into an ideology in German and Continental criminal law theory. It rests on interrelated claims about the (ideal or real) extraordinary qualities and properties of the criminal law and has led to exceptional doctrines in constitutional criminal law and criminal law theory. It prima facie paradoxically perpetuates and conserves the criminal law, and all too often leads to ideological thoughtlessness, which may blind us to the (...) dark sides of criminal laws in action. (shrink)

Criminal law exceptionalism, or so I suggest, has turned into an ideology in German and Continental criminal law theory. It rests on interrelated claims about the (ideal or real) extraordinary qualities and properties of the criminal law and has led to exceptional doctrines in constitutional criminal law and criminal law theory. It prima facie paradoxically perpetuates and conserves the criminal law, and all too often leads to ideological thoughtlessness, which may blind us to the (...) dark sides of criminal laws in action. (shrink)

Criminal Law Conversations provides an authoritative overview of contemporary criminal law debates in the United States. This collection of high caliber scholarly papers was assembled using an innovative and interactive method of nominations and commentary by the nation's top legal scholars. Virtually every leading scholar in the field has participated, resulting in a volume of interest to those both in and outside of the community. Criminal Law Conversations showcases the most captivating of these essays, and provides insight (...) into the most fundamental and provocative questions of modern criminal law. (shrink)

This is an introduction to the special issue on criminal law theory.