By William S. Laufer
We are living in an period outlined via company greed and malfeasance—one during which unparalleled accounting frauds and screw ups of compliance run rampant. as a way to calm investor fears, revive perceptions of legitimacy in markets, and display the unravel of kingdom and federal regulators, a number of reforms, high-profile investigations, and symbolic prosecutions were performed in reaction. yet are they enough?
In this well timed paintings, William S. Laufer argues that regardless of contemporary criminal reforms, company felony legislation is still useless. As facts, Laufer considers the failure of courts and legislatures to type legal responsibility principles that rather characteristic blame for firms. He analyzes the video games that firms play to deflect legal accountability. And he additionally demonstrates how the trade of cooperation for prosecutorial leniency and amnesty belies real legislations enforcement. yet none of those components, based on Laufer, trumps the truth that there isn't any unmarried constituency or curiosity crew that strongly and regularly advocates the significance and precedence of company legal legal responsibility. within the absence of a brand new general of company legal responsibility, the ability of regulators to maintain company abuses in cost will stay inadequate.
A useful corrective to our present weather of graft and greed, Corporate our bodies and in charge Minds will be necessary to policymakers and criminal minds alike. “[This] well timed paintings bargains a dispassionate research of difficulties with regards to company crime.”—Harvard legislation Review
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Extra resources for Corporate Bodies and Guilty Minds: The Failure of Corporate Criminal Liability
Yet many wondered whether the power of state government was sufficient to control the insatiable interests and entrepreneurial designs of corporations. ‘‘The influence of financial men has become so powerful and far reaching in self-interest,’’ according to one commentator, ‘‘that doubt is expressed whether its iron grip on government and business can ever be destroyed. This mighty power has crippled or destroyed competition by placing a limitation in the field of production. . ’’ 68 The notion that corporations are not ‘‘persons’’ but only artificial entities outside the scope of the criminal law was now nowhere to be found.
87 The premise of a shared risk between principals and agents seems to have been more apparent than real. The notion of risk sharing is often eroded by strong incentives to quietly discipline or terminate wayward employees so that a strict imputation of liability to the entity might be avoided. 88 Detecting employee misconduct subjects the corporation to incrimination and, thus, to a tax. 89 An awareness of this problem emerged immediately after Hudson as corporations considered the expenditure of their enforcement costs.
81 With joint and several liability, however, both the principal and its agents share a distinct risk of liability and, from it, a reciprocal incentive for law abidance. 82 The ingenuous public policy that emerged in New York Central & Hudson River Railroad shared the allocation of risks to both principal and agent. 83 Corporate liability deters crime; it moves risk of loss away from risk-averse officers and directors toward the firm; it efficiently distributes liability risk between the firm and employees.