Close Corporations and the Criminal Law: On “Mom and Pop” and a Curious Rule

Established principles governing corporate criminal liability apply indiscriminately to all corporations, regardless of size or corporate form. Yet to date, little consideration has been given to the question whether the reasons supporting recognition of corporate liability for crime apply with equal force to close corporations. Nor has the question whether the same sentencing rules should apply to close corporations and their publicly held counterparts been addressed. Hence, this Article journeys off the beaten path to explore these intersecting themes

Corporate Criminal Accountability: A Brief History and an Observation

The pervasive influence enjoyed by large, publicly held corporations has inspired a body of scholarship that considers at length the need for effective mechanisms to regulate institutional behavior. Enforcement of penal statutes applicable to corporations is, of course, included among existing options, and renewed interest in criminally prosecuting corporations during the last decade has brought to the fore the true breadth of corporate exposure to criminal liability. While it has long been settled that corporations constitutionally may be held accountable for criminal misdeeds of their agents, one detects a current sense of uneasiness regarding the appropriate role and scope of corporate criminal liability. Have we, for instance, strayed too far from the mens rea model of criminality when dealing with institutional misbehavior? A vast array of penal statutes applicable to the corporate entity dispenses with any requirement of moral blameworthiness. Is it time, perhaps, to re-examine such offenses in light of traditional notions of culpability so that we may arrive at a consensus about what constitutes truly culpable corporate wrongdoing and eliminate criminal penalties for trivial conduct?

Criminal Liability of Corporate Officers for Strict Liability Offenses - Another View

This Article offers an alternative analysis of the doctrine articulated by the Supreme Court in Dotterweich and Park and its subsequent application by the Ninth Circuit. In the course of so doing, it suggests that Professor Abrams has lost sight of the public welfare offense model that provided the analytical framework within which the cases were decided and that his postulates may thus be faulted as lacking in context. The analysis in this Article demonstrates that the responsible share standard of liability has, from the outset, incorporated the requirement of an act or omission to act and that of causation as well, and that these two elements of liability, when considered together with administrative enforcement policy, should assuage apprehension regarding the possible unfairness of holding corporate officers strictly liable for violations of the Act. This Article also suggests that the food and drug cases have important implications regarding the system of delegation upon which corporate officers find it essential to rely

Wetlands Reform and the Criminal Enforcement Record: A Cautionary Tale

Anecdotal narratives about environmental criminal enforcement policies and records are suspect. Their often distorted pictures of reality can lead to exaggerated claims about the existence or dimensions of problematic criminal enforcement issues. Uncritically accepted as true, those claims can provide a seemingly credible basis for misguided proposals that have the potential to do more harm than good. In the case of wetlands criminal enforcement, the anecdotal narrative would have us believe that the government is shooting wildly from the hip, with little rhyme or reason. After studying the criminal enforcement record, the best that can be said is that no matter how sincere the narrator, the narrative is utterly uninformed