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The Evolution of Corporate Criminal Law

in Corporate Bodies and Guilty Minds: The Failure of Corporate Criminal Liability

This chapter focuses on the evolution of corporate criminal law in America. The historical phases of the substantive corporate criminal law discussed in the chapter share the tension accompanying the ... More

This chapter focuses on the evolution of corporate criminal law in America. The historical phases of the substantive corporate criminal law discussed in the chapter share the tension accompanying the social control of business enterprises, whether this tension appears as concerns with the metaphysics of personhood (phase one), the rise and obscure fall of vicarious liability (phase two), the routine risk-shifting between agents and principals (phase three), the successful and failed attempts at model state and federal codes (phase four), the reactions to a “new” regulatory state (phase five), the gaming of regulators by the “good citizen” corporation (phase six), or the reactive prosecution and regulation following a period of scandals marked by widespread accounting fraud and governance and compliance failures (phase seven). These seven phases overlap significantly and are far from discrete. They do, however, provide one account of some of the more important trends and milestones of the corporate criminal law. Notably, all phases reflect the powerful influence of the public and segments of the business community in lobbying for or inhibiting legislative reform. These influences remain once legislation is passed, and they often dictate the extent to which laws are largely ignored or rigorously enforced.Less

Neuroscience and Criminal Law Doctrine

Peter A. Alces

in The Moral Conflict of Law and Neuroscience

Chapter Two discusses the uneasy fit between instrumental and non-instrumental objects of punishment in the criminal law doctrine. The chapter first argues that the criminal law’s conception of ... More

Chapter Two discusses the uneasy fit between instrumental and non-instrumental objects of punishment in the criminal law doctrine. The chapter first argues that the criminal law’s conception of responsibility may be undermined when we develop a better understanding of the relationship between neural phenomena and subjective mental states. Second, the chapter analyzes the doctrine’s inconsistent sensitivity to cognitive limitations by examining the variances in sentencing for juveniles, adults with congenital diminished intellectual capacity, and adults with acquired cognitive impairments resulting from trauma. The chapter then shows that the doctrine’s inability to account for the complex interaction of nature and nurture that manifests in aberrant human behavior prevents criminal law from successfully asserting any normative foundation whatsoever. The chapter concludes with the subsequent chapter’s thesis: that the inaccuracy of the criminal law’s behavioral model puts the criminal justice system at odds with what is likely our own individual conceptions of morality.Less

Human Rights and International Criminal Law

in The Perils of Global Legalism

In the twentieth century, both international criminal law and international human rights law were greatly expanded. International criminal law has come to refer to a set of international crimes, ... More

In the twentieth century, both international criminal law and international human rights law were greatly expanded. International criminal law has come to refer to a set of international crimes, which can be committed by individuals, who then are subject to the jurisdiction of international tribunals and domestic courts under the principle of universal jurisdiction. International human rights law refers to states' obligations to respect certain rights of people irrespective of their nationality. In the context of global legalism, the rise of individual rights under international law is an exciting development. This chapter discusses human rights and international criminal law. After describing the trials of war criminals at Nuremberg and Tokyo, it examines the establishment of the international human rights regime, what accounts for the development of international criminal law and the international human rights regime after World War II, the European Court of Human Rights and the Inter-American Court of Human Rights, and the recent past and likely future of the International Criminal Court.Less

Recognizing Personhood

in Corporate Bodies and Guilty Minds: The Failure of Corporate Criminal Liability

This chapter reviews the place of corporate personhood in the criminal law. The rhetoric of personhood and its evils are discussed. The challenges of making personhood relevant are also considered, ... More

This chapter reviews the place of corporate personhood in the criminal law. The rhetoric of personhood and its evils are discussed. The challenges of making personhood relevant are also considered, first, in terms of existing regulatory law and practice and, second, as a foundation of substantive criminal law. There is a wide range of reactions to the ascription of human characteristics to corporate entities, from a vocal minority who attribute the evils of globalization to corporate personhood to a majority who do not know what to make of it; reject it as anthropomorphic, irrelevant; think it inefficient; or are simply ambivalent. Reactions turn on the meaning and consequences of accepting or rejecting attributions of personhood. Most people seem to agree that if the law receives it as a fiction, legislatures and courts must wrestle with just how relevant it is and how it should be recognized.Less

Criminal Cases

in Specializing the Courts

This chapter explores the specialization in criminal law in the states, highlighting the courts that hear specific subsets of criminal cases. Separating criminal and civil cases allows judges who ... More

This chapter explores the specialization in criminal law in the states, highlighting the courts that hear specific subsets of criminal cases. Separating criminal and civil cases allows judges who have more seniority or influence with a presiding judge to avoid criminal cases. Old-style drug courts and the assignment of death penalty cases to certain Philadelphia judges make it clear that judicial specialization can have important influences on the substance of judicial policy, even when it is undertaken for policy-neutral reasons. The general idea of problem-solving courts has diffused from one type of criminal case to others. Like drug courts, mental health courts are inherently limited in their effect. State courts have a good deal of judicial specialization in criminal cases as a whole. Juvenile courts, women's courts, and domestic relations courts reflected the thinking of Progressives about how to address social problems.Less

Laws

H. G. Cocks

in Visions of Sodom: Religion, Homoerotic Desire, and the End of the World in England, c. 1550-1850

In the seventeenth and eighteenth centuries, laws against homoerotic behaviour seemed to have the sanction of scripture, time, and natural law. The destruction of Sodom and Gomorrah by God was used ... More

In the seventeenth and eighteenth centuries, laws against homoerotic behaviour seemed to have the sanction of scripture, time, and natural law. The destruction of Sodom and Gomorrah by God was used to justify the infliction of the capital penalty on contemporary sodomites. The laws against sodomy, which only began to be applied in a concerted form in the 1690s, appeared to accord with the Jewish law, and with natural and common law. As such they had an almost unique status in English law. They were in fact of very recent origin and their interpretation was far from agreed upon. Sodomy had only become a secular offence in 1533, and the law was very rarely enforced before the 1690s. This meant that when it began to be applied by the courts, the law was essentially improvised. This was especially true of "attempting" the crime, which became an offence in the 1690s and the subsequent basis of all future laws. Claims about the antiquity of laws against homoerotic behaviour obscured the fact that they were of recent origin.Less

Vengeance, Complicity, and Criminal Law in Othello

Richard H. Mcadams

in Shakespeare and the Law: A Conversation among Disciplines and Professions

In Othello, a legal question is posed for lawyers regarding Iago: is he criminally liable for the murder of Desdemona? An extraordinary thought experiment for testing the limit of Elizabethan ... More

In Othello, a legal question is posed for lawyers regarding Iago: is he criminally liable for the murder of Desdemona? An extraordinary thought experiment for testing the limit of Elizabethan complicity law, Othello favorably contrasts the deliberative elements of legal process with the more arbitrary process of private vengeance. This chapter argues that while criminal law provides a frame through which to view and study Othello, the play itself also offers something in return: thought experiments for examining law—showing the virtue of legal processes by the tragedy which its absence creates. It uses criminal complicity rules to explain and understand the choices which Iago makes in the play, suggesting that a legal analysis might show how legally trained members of the original audiences interpreted the play.Less

The Proliferation of Actuarial Methods in Punishing and Policing

in Against Prediction: Profiling, Policing, and Punishing in an Actuarial Age

This chapter documents the ascendance of the actuarial paradigm, focusing on a wide range of predictive tools in criminal law and punishment. It explores the use of actuarial methods in the larger ... More

This chapter documents the ascendance of the actuarial paradigm, focusing on a wide range of predictive tools in criminal law and punishment. It explores the use of actuarial methods in the larger context of selective incapacitation and the resulting reliance on sentencing guidelines that mete out punishment based on prior criminal history. It also describes a gradual shift in law enforcement toward the increased use of criminal profiling—from the early instances of hijacker profiles developed in the 1960s to the more frequent use in the 1970s of drug-courier and alien-smuggler profiles and the more frequent use of profiling in the last quarter of the twentieth century. The historical trajectory reflects the breadth of the actuarial paradigm—from preliminary investigation, through sentencing, and ultimately to the prison-release decision.Less

Playing Games

in Corporate Bodies and Guilty Minds: The Failure of Corporate Criminal Liability

This chapter reveals the effects of an abandoned substantive corporate criminal law, where prosecutorial discretion trumps liability rules; where there is a whim and arbitrariness to corporate ... More

This chapter reveals the effects of an abandoned substantive corporate criminal law, where prosecutorial discretion trumps liability rules; where there is a whim and arbitrariness to corporate liability. The chapter considers how compliance games are played, their distinct objectives, rationales, and rules. It reviews how the game of compliance as business ethics seems to have magically changed in the post-scandals era. Finally, it concludes that there is a paradox to compliance that may offer a valuable lesson for the corporate governance movement. Without liability rules that fairly and justifiably construct blame, regulation will, at times, prompt some corporations to dissimulate in artful, gamelike ways.Less

Sanction and Socialize: Military Command Responsibility and Corporate Accountability for Atrocities

Scott A. Gilmore

in Corporate Social Responsibility?: Human Rights in the New Global Economy

The CSR movement faces a dilemma between the penal code of sanctions and the honor code of self-regulation. To escape this binary, this Chapter draws lessons from the laws of war. Mitigating the ... More

The CSR movement faces a dilemma between the penal code of sanctions and the honor code of self-regulation. To escape this binary, this Chapter draws lessons from the laws of war. Mitigating the human rights impact of war and business are similar projects. Both graft humanitarian concerns onto hierarchical organizations whose missions seem contrary to human rights. But the laws of war offer a regulatory model: the doctrine of command responsibility. This regime fuses sanctions with socialization. It requires commanders to instill cultures of compliance, and it penalizes them for failing to prevent or punish human rights abuses committed by their subordinates. This Chapter argues that the CSR project should embrace corporate command responsibility to incentivize industry self-regulation.Less

The Real-Time Tribunal

in Justice in the Balkans: Prosecuting War Crimes in the Hague Tribunal

This chapter describes the role that Clint Williamson played with indirect help from the United States in developing the first arrest for the tribunal with a secret indictment. Williamson's ... More

This chapter describes the role that Clint Williamson played with indirect help from the United States in developing the first arrest for the tribunal with a secret indictment. Williamson's experience with undercover work in the United States exemplified the kind of expertise in the field and the courtroom that Blewitt ideally wanted to recruit into the tribunal. Arbour concluded that the tribunal had to radically change its mindset and devise a new strategy which would be more surreptitious than the highly publicized practices of the past. Thus, a detailed analysis of how norms relating to international criminal law were successfully instituted and implemented at the Hague tribunal, through interconnected processes of structural linkage, cultural legitimation, and temporal control. Louise Arbour's charisma was socially organized and used dialectical authorization and teamwork to make it a productive source of agency.Less

Ernest W. Burgess and Parole Prediction

in Against Prediction: Profiling, Policing, and Punishing in an Actuarial Age

This chapter explores the birth of the actuarial in American criminal law, focusing on the development and use of the first actuarial instrument by Ernest W. Burgess in the late 1920s. Drawing on ... More

This chapter explores the birth of the actuarial in American criminal law, focusing on the development and use of the first actuarial instrument by Ernest W. Burgess in the late 1920s. Drawing on sociology's new statistical rigor, Burgess helped refocus the study of sociology on the individual and was a leading figure in the structural transformation that took place in the discipline during the 1930s and 1940s.Less

Prologue

in Against Prediction: Profiling, Policing, and Punishing in an Actuarial Age

Today, the actuarial permeates the field of criminal law and its enforcement. Risk-assessment tools are being used to identify whom to search, when to punish more, and how to administer the penal ... More

Today, the actuarial permeates the field of criminal law and its enforcement. Risk-assessment tools are being used to identify whom to search, when to punish more, and how to administer the penal sanction. With the single and notable, but limited, exception of racial profiling against African Americans and Hispanics on the highways, most scholars, criminal justice practitioners, and public citizens embrace the turn to actuarial methods as a more efficient, rational, and wealth-maximizing tool to allocate scarce law enforcement resources. This book sets forth three compelling reasons why we should be skeptical of—rather than embrace—the new actuarial paradigm. First, the reliance on predictions of future criminality may undermine the primary goal of law enforcement, namely reducing crime. Second, the reliance on probabilistic methods produces a distortion in the carceral population. Third, the proliferation of actuarial methods has begun to bias our conception of just punishment.Less

The Foca Rape Case

in Justice in the Balkans: Prosecuting War Crimes in the Hague Tribunal

This chapter discusses the establishment of rape houses and conditions of sexual enslavement in the area of Foca, in the southern part of Bosnia. This case began within a week of the Srebrenica ... More

This chapter discusses the establishment of rape houses and conditions of sexual enslavement in the area of Foca, in the southern part of Bosnia. This case began within a week of the Srebrenica genocide case in mid-March 2000. The Srebrenica and Foca cases broke new ground in crucial areas of international criminal law that the Tadic case initially raised but failed to successfully address in the ICT's first trial. The Srebrenica and Foca cases represented two different parts of the effort to achieve a Greater Serbia by means of the ethnic cleansing of strategic areas in Bosnia and later Kosovo. Hence, the power of such experiences is reflected in the growth and maturation of the International Criminal Tribunal in The Hague and its linkages into the wider emerging field of international humanitarian and criminal law.Less