Document Type

Article

Publication Date

1981

Abstract

Did you ever expect a corporation to have a conscience, when it has no soul to be damned, and no body to be kicked?
Edward, First Baron Thurlow 1731-1806

The Lord Chancellor of England quoted above was neither the first nor the last judge to experience frustration when faced with a convicted corporation. American sentencing judges are likely to face a similar dilemma with increasing frequency in the near future, for a number of signs indicate that corporate prosecutions will become increasingly commonplace. At first glance, the problem of corporate punishment seems perversely insoluble: moderate fines do not deter, while severe penalties flow through the corporate shell and fall on the relatively blameless. Nonetheless, this Article will submit that there are ways both to focus the incidence of corporate penalties on those most able to prevent repetition and to increase the efficiency of corporate punishment without employing in terrorem penalties.

This assertion may be greeted with polite indifference since an obvious and simpler alternative to pursuing new forms of corporate penalties is simply to prosecute the individual executive and ignore the corporate entity. The case for such an individual focus to corporate law enforcement is strong, but it is not unqualified. This Article will argue that law enforcement officials cannot afford to ignore either the individual or the firm in choosing their targets, but can realize important economies of scale by simultaneously pursuing both.

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