When corporations carry on their business in a grossly negligent manner, or take a cavalier approach to risk management, the consequences can be catastrophic. The harm may be financial, as occurred ...when such well-regarded companies as Enron, Lehman Brothers, Worldcom and Barings collapsed, or it may be environmental, as illustrated most recently by the Gulf oil spill. Sometimes deaths and serious injuries on a mass scale occur, as in the Bhopal gas disaster, the Chernobyl nuclear explosion, the Paris crash of the Concorde, the capsize of the Herald of Free Enterprise, and rail crashes at Southall, Paddington and Hatfield in England.What role can the law play in preventing such debacles and in punishing the corporate offenders?
This collection of thematic papers and European country reports addresses these questions at both a theoretical and empirical level. The thematic papers analyse corporate criminal liability from a range of academic disciplines, including law, sociology/criminology, economics, philosophy and environmental studies, whilst the country reports look at the laws of corporate crime throughout Europe, highlighting both common features and irreconcilable differences between the various jurisdictions.
James Gobert has been a Professor of Criminal Law at the University of Essex since 1989, and before that at the University of Tennessee. He has also taught at the University of Michigan, Vanderbilt University, and the University of Notre Dame (London). His specialist areas of research are corporate crime and white collar crime and he has spoken on these topics at universities and conferences throughout Europe, Australia and North America.
Ana-Maria Pascal is the MBA Programme Director at London College of Business, having previously been a Lecturer and Senior Researcher at the University of Essex. She holds a PhD in Philosophy and an MBA in International Finance. Her recently published PhD thesis, Pragmatism and 'the End' of Metaphysics (2009) won the Aurel Leon award for debut.
Preface by Michael Smythe, Partner and Head of Public Policy, and Clifford Chance, LLP Part I: Thematic Issues 1. Containing Corporate Crime: Civil or Criminal Controls? by Celia Wells 2. A Legal Person’s Conscience: Philosophical Underpinnings of Corporate Criminal Liability by Ana-Maria Pascal 3. The Challenges of Regulating Powerful Economic Actors by Laureen Snider and Steven Bittle 4. State Complicity in the Production of Corporate Crime by Steve Tombs 5. Penalising Corporate 'Culture': The Key to Safer Corporate Activity? by Rick Sarre Part II: Organisational v. Individual Liability 6. The Organisational Component in Corporate Crime by Maurice Punch 7. Individual Liability of Company Officers by Neil Foster 8. Squaring the Circle: The Relationship between Individual and Organisational Liability by James Gobert Part III: Particular Offences 9. Environmental Offending, Regulation and 'The Legislative Balancing Act' by Nigel South 10. Investigating Safety Crimes in Finland by Anne Kaarina Alvesalo-Kuusi 11. Financial Crime and Litigation: Aftermath of Shadow Banking and Subprime Crisis by Sheri Markose 12. Concluding Observations by Kier Starmer, QC (Director of Public Prosecutions) Part IV: Country Reports 13. Austria by Professor Ingrid Mitgutsch 14. Belgium by Amanda Jane Struby 15. Czech Republic by Melanie Ramkissoon 16. Denmark by Melanie Ramkissoon 17. Estonia by TBC 18. Finland by Dr Anne Kaarina Alvesalo-Kuusi 19. France by Pascal Beauvais 20. Germany by Klaus Rogall 21. Italy by Cristina de Maglie 22. Ireland by Edward Fitzgerald 23. Lithuania by Deividas Soloveicikas 24. Luxembourg by Janis Dillon 25. Netherlands by Melanie Ramkissoon 26. Poland by TBC 27. Portugal by TBC 28. Romania by Ana-Maria Pascal 29. Slovenia by Janis Dillon 30. Spain by Melanie Rankissoon 31. Sweden by Tom Alexander Burton 32. UK by James Gobert
Corporations have long posed conceptual difficulties in a variety of doctrinal contexts. From the first cases involving corporate claims for protection under the U.S. Constitution, to early ...recognitions of corporate criminal liability a century later, the Supreme Court has an extensive history of inquiring into the nature of corporations and what that answer might tell us about their rights and responsibilities. It has often come up short in this regard - for example, using thin characterizations of corporations as "artificial entities" or "creatures" given their separate legal personality, or as "associations of persons" or "aggregates" given the human interests at stake. At times, the Court has ignored or dismissed as irrelevant the corporate identity of a rights claimant or litigant, or it has simply acted pragmatically, such as to discard an "old and exploded doctrine" that no longer fit societal realities regarding corporate liability.
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“Professor Coffee's compelling new approach to holding fraudsters to account is indispensable reading for any lawmaker serious about deterring corporate crime.”—Robert Jackson, former Commissioner, ...Securities and Exchange Commission In the early 2000s, federal enforcement efforts sent white collar criminals at Enron and WorldCom to prison. But since the 2008 financial collapse, this famously hasn't happened. Corporations have been permitted to enter into deferred prosecution agreements and avoid criminal convictions, in part due to a mistaken assumption that leniency would encourage cooperation and because enforcement agencies don't have the funding or staff to pursue lengthy prosecutions, says distinguished Columbia Law Professor John C. Coffee. “We are moving from a system of justice for organizational crime that mixed carrots and sticks to one that is all carrots and no sticks,” he says. He offers a series of bold proposals for ensuring that corporate malfeasance can once again be punished. For example, he describes incentives that could be offered to both corporate executives to turn in their corporations and to corporations to turn in their executives, allowing prosecutors to play them off against each other. Whistleblowers should be offered cash bounties to come forward because, Coffee writes, “it is easier and cheaper to buy information than seek to discover it in adversarial proceedings.” All federal enforcement agencies should be able to hire outside counsel on a contingency fee basis, which would cost the public nothing and provide access to discovery and litigation expertise the agencies don't have. Through these and other equally controversial ideas, Coffee intends to rebalance the scales of justice.
Legal personality - its nature and function - has become a topic of renewed interest. In particular, there is increasing interest in extending existing categories of legal personality. While ...contemporary discussion of legal personality is directed at comparably novel ends, aspects of the discussion are familiar, mirroring broader patterns of thought evident in historical treatments of the subject. Most familiar of all is the pronounced conceptual uncertainty that continues to surround legal personality as a device. This uncertainty may compromise efforts to successfully create and manage new forms of legal person. Proceeding from an understanding of legal personality as function, and the elements of legal personality as the terms of a licence, we explore considerations essential to the effective design of synthetic legal persons, including the need for clarity with respect to immediate purpose, designated legal capacities and the conditions against which the grant of legal personality might be made by the State. Drawing on the historical example of the corporation as the first truly 'synthetic' legal person in Anglo-Australian law we tell a cautionary tale about the conferral of synthetic legal personality, contrasting the flawed design of the corporate device with that of new 'environmental' devices, including New Zealand's Whanganui River.
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This Element presents the notion of legal personhood, which is a foundational concept of Western law. It explores the theoretical and philosophical foundations of legal personhood, such as how legal ...personhood is defined and whether legal personhood is connected to personhood as a general notion. It also scrutinises particular categories of legal personhood. It first focuses on two classical categories: natural persons (human beings) and artificial persons (corporations). The discussions of natural persons also cover the developing legal status of children and individuals with disabilities. The Element also presents three emerging categories of legal personhood: animals, nature and natural objects, and AI systems. This title is also available as Open Access on Cambridge Core.
Since 2017, some of the most beloved and iconic rivers in the world have been recognised in law as legal persons and/or living entities, with a range of legal rights and protections. These profound ...legal changes can transform the relationship between people and rivers, and are the result of ongoing leadership from Indigenous peoples and environmental advocates. This paper uses a comparative analysis of the legal and/or living personhood of rivers and lakes in Aotearoa New Zealand, India, Bangladesh, Colombia to identify the legal status of specific rivers, and highlight the disturbing trend of recognising rivers as legal persons and/or living entities whilst also denying rivers the right to flow. Rather than empowering rivers in law to resist existential threats, the new legal status of rivers may thus make it even more difficult to manage rivers to prevent their degradation and loss. This paper highlights an 'extinction problem' for rivers that environmental law has exacerbated, by recognising new nonhuman living beings whilst simultaneously denying them some of the specific legal rights they need to remain in existence. The paper also shows how a pluralist analysis of the status of rivers can help to identify some potential ways to address this problem.
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CORPORATE CRIMINAL LIABILITY Angelo, Matthew; Babin, Alexandra; Carney, Jackie ...
The American criminal law review,
06/2020, Volume:
57, Issue:
3
Journal Article
Statutory maximum and minimum fines prevail over the fines provided under the Organizational Guidelines. If the defendant organization "operated primarily for a criminal purpose or primarily by ...criminal means," then payment of the fine is immediate, without exception. Otherwise, the corporation must pay immediately unless it is financially unable to do so, in which case the court shall require it to pay at the earliest possible date or according to an installment schedule. A court must reduce the fine if it impairs the organization's ability to make-restitution to victims, even if the fine falls below the Guideline or statutory minimum.
American courts routinely hand down harsh sentences to individuals, but a very different standard of justice applies to corporations.Too Big to Jailtakes readers into a complex, compromised world of ...backroom deals, for an unprecedented look at what happens when criminal charges are brought against a major company in the United States.
THE CORPORATE INSANITY DEFENSE DIAMANTIS, MIHAILIS E.
The journal of criminal law & criminology,
04/2021, Volume:
111, Issue:
1
Journal Article
Peer reviewed
Corporate criminal justice rests on the fiction that corporations possess “minds” capable of instantiating culpable mens rea. The retributive and deterrent justifications for punishing criminal ...corporations are strongest when those minds are well-ordered. In such cases misdeeds are most likely to reflect malice, and sanctions are most likely to have their intended preventive benefits. But what if a corporate defendant’s mind is disordered? Organizational psychology and economics have tools to identify normally functioning organizations that are fully accountable for the harms they cause. These disciplines can also diagnose dysfunctional organizations where the threads of accountability may have frayed and where sanctions would not deter. Punishing such corporations undermines the goals of criminal law, leaves victim interests unaddressed, and is unfair to corporate stakeholders.
This Article argues that some corporate criminal defendants should be able to raise the insanity defense. Statutory text makes the insanity defense available to all qualifying defendants. When a corporate criminal defendant’s mind is sufficiently disordered, basic criminal law purposes also support the defense. Corporate crime in these cases may trace to dysfunctional systems or subversive third parties rather than to corporate malice. For example, individual corporate employees may thwart well-meaning corporate policies to pursue personal advantage at the expense of the corporation itself. Corporations then may seem more like victims of their own misconduct rather than perpetrators of it.
Justice and prevention favor treatment of insane corporations rather than punishment. Recognizing the corporate insanity defense would better serve victims’ and stakeholders’ interests in condemning and preventing corporate misconduct. Treatment would create an opportunity for government experts to reform dysfunctional corporations in a way that predominant modes of corporate punishment cannot. Effective reform takes victims seriously by minimizing the chance that others will be harmed. It also spares corporate stakeholders unnecessary punishment for corporate misconduct that could be sanctioned in more constructive ways.
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