- Published in print:
- 2006
- Published Online:
- March 2013
- ISBN:
- 9780226470405
- eISBN:
- 9780226470429
- Item type:
- chapter
- Publisher:
- University of Chicago Press
- DOI:
- 10.7208/chicago/9780226470429.003.0001
- Subject:
- Law, Company and Commercial Law
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
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.
- Published in print:
- 2006
- Published Online:
- March 2013
- ISBN:
- 9780226470405
- eISBN:
- 9780226470429
- Item type:
- chapter
- Publisher:
- University of Chicago Press
- DOI:
- 10.7208/chicago/9780226470429.003.0004
- Subject:
- Law, Company and Commercial Law
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
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.
William S. Laufer
- Published in print:
- 2006
- Published Online:
- March 2013
- ISBN:
- 9780226470405
- eISBN:
- 9780226470429
- Item type:
- book
- Publisher:
- University of Chicago Press
- DOI:
- 10.7208/chicago/9780226470429.001.0001
- Subject:
- Law, Company and Commercial Law
We live in an era defined by corporate greed and malfeasance—one in which unprecedented accounting frauds and failures of compliance run rampant. In order to calm investor fears, revive perceptions ...
More
We live in an era defined by corporate greed and malfeasance—one in which unprecedented accounting frauds and failures of compliance run rampant. In order to calm investor fears, revive perceptions of legitimacy in markets, and demonstrate the resolve of state and federal regulators, a host of reforms, high-profile investigations, and symbolic prosecutions have been conducted in response. But are they enough? This book argues that even with recent legal reforms, corporate criminal law continues to be ineffective. As evidence, this book considers the failure of courts and legislatures to fashion liability rules that fairly attribute blame for organizations. It analyzes the games that corporations play to deflect criminal responsibility. And it also demonstrates how the exchange of cooperation for prosecutorial leniency and amnesty belies true law enforcement. But none of these factors trump the fact that there is no single constituency or interest group that strongly and consistently advocates the importance and priority of corporate criminal liability. In the absence of a new standard of corporate liability, the power of regulators to keep corporate abuses in check will remain insufficient.Less
We live in an era defined by corporate greed and malfeasance—one in which unprecedented accounting frauds and failures of compliance run rampant. In order to calm investor fears, revive perceptions of legitimacy in markets, and demonstrate the resolve of state and federal regulators, a host of reforms, high-profile investigations, and symbolic prosecutions have been conducted in response. But are they enough? This book argues that even with recent legal reforms, corporate criminal law continues to be ineffective. As evidence, this book considers the failure of courts and legislatures to fashion liability rules that fairly attribute blame for organizations. It analyzes the games that corporations play to deflect criminal responsibility. And it also demonstrates how the exchange of cooperation for prosecutorial leniency and amnesty belies true law enforcement. But none of these factors trump the fact that there is no single constituency or interest group that strongly and consistently advocates the importance and priority of corporate criminal liability. In the absence of a new standard of corporate liability, the power of regulators to keep corporate abuses in check will remain insufficient.
Andrea Fried
- Published in print:
- 2020
- Published Online:
- March 2020
- ISBN:
- 9780198833888
- eISBN:
- 9780191872242
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198833888.003.0010
- Subject:
- Business and Management, International Business, Knowledge Management
In this chapter, Andrea Fried discusses the implications of a better understanding of deviance from standards for corporate responsibility in terms of both compliance-related duties for companies and ...
More
In this chapter, Andrea Fried discusses the implications of a better understanding of deviance from standards for corporate responsibility in terms of both compliance-related duties for companies and their criminal liability. Five questions related to this are answered in this summarizing chapter: Is voluntary self-regulation of companies a way of ensuring corporate responsibility? What contributes to a manipulation of standards even if a strong external control and sanctioning system is in place? Should legislative authorities only sanction actual knowledge of and engagement in wrongful acts of standard deviation? Should legislation stipulate a criminal liability also for companies? Why should companies allow organizational members to deviate from standards? Answers to these questions relate to the empirical investigations presented in previous chapters of the book and show strong support for a corporate criminal law that should apply when standard deviations lead to health, environmental, or safety risks.Less
In this chapter, Andrea Fried discusses the implications of a better understanding of deviance from standards for corporate responsibility in terms of both compliance-related duties for companies and their criminal liability. Five questions related to this are answered in this summarizing chapter: Is voluntary self-regulation of companies a way of ensuring corporate responsibility? What contributes to a manipulation of standards even if a strong external control and sanctioning system is in place? Should legislative authorities only sanction actual knowledge of and engagement in wrongful acts of standard deviation? Should legislation stipulate a criminal liability also for companies? Why should companies allow organizational members to deviate from standards? Answers to these questions relate to the empirical investigations presented in previous chapters of the book and show strong support for a corporate criminal law that should apply when standard deviations lead to health, environmental, or safety risks.
Andrea Fried (ed.)
- Published in print:
- 2020
- Published Online:
- March 2020
- ISBN:
- 9780198833888
- eISBN:
- 9780191872242
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198833888.001.0001
- Subject:
- Business and Management, International Business, Knowledge Management
Standards have become widespread regulatory tools that promote global trade, innovation, efficiency, and quality. They contribute significantly to the creation of safe, reliable, and high-quality ...
More
Standards have become widespread regulatory tools that promote global trade, innovation, efficiency, and quality. They contribute significantly to the creation of safe, reliable, and high-quality services and technologies to ensure human health, environmental protection, or information security. Yet intentional deviations from standards by organizations are often reported in many sectors, which can either contribute to or challenge the measures of safety and quality they are designed to safeguard. Why then, despite all potential consequences, do organizations choose to deviate from standards in one way or another? This book uses structuration theory—covering aspects of both structure and agency—to explore the organizational conditions and contradictions under which different types of deviance occur. It also provides empirical explanations for deviance in organizations that go beyond an understanding of individual misbehaviour where mainly a single person is held responsible. Case studies of software developing organizations illustrate insightful generalizations on standards as a mechanism of sensemaking, resource allocation, and sanctioning, and provide ground to rethink corporate responsibility when deviating from standards in the ‘audit society’.Less
Standards have become widespread regulatory tools that promote global trade, innovation, efficiency, and quality. They contribute significantly to the creation of safe, reliable, and high-quality services and technologies to ensure human health, environmental protection, or information security. Yet intentional deviations from standards by organizations are often reported in many sectors, which can either contribute to or challenge the measures of safety and quality they are designed to safeguard. Why then, despite all potential consequences, do organizations choose to deviate from standards in one way or another? This book uses structuration theory—covering aspects of both structure and agency—to explore the organizational conditions and contradictions under which different types of deviance occur. It also provides empirical explanations for deviance in organizations that go beyond an understanding of individual misbehaviour where mainly a single person is held responsible. Case studies of software developing organizations illustrate insightful generalizations on standards as a mechanism of sensemaking, resource allocation, and sanctioning, and provide ground to rethink corporate responsibility when deviating from standards in the ‘audit society’.
