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PrehistoryofCorporations.Bush - ESSAY THE PREHISTORY OF...

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ESSAY THE PREHISTORY OF CORPORATIONS AND CONSPIRACY IN INTERNATIONAL CRIMINAL LAW: WHAT NUREMBERG REALLY SAID Jonathan A. Bush* Among the most important questions in international criminal law since the mid-1990s have been the status of Anglo-American conspiracy law and the liability of corporations and their officers for human rights viola- tions. These two issues have arisen in a broad range of settings, including Alien Tort Statute suits, cases arising out of the American detentions at Guantanamo Bay, and in the various international criminal tribunals at The Hague. The cases and jurists have, despite their otherwise diverse an- swers, agreed that the Nuremberg trials after World War II are the most im- portant precedent. This Essay examines the five Nuremberg cases that fea- tured economic perpetrators and the legal theories used there. The Essay focuses on the forgotten, crucial months between the first Nuremberg trial (1945–46) and the later twelve trials (1946–49), when theories of corporate and conspiracy liability were considered and debated. Using unpublished memos, letters, and diaries, the Essay concludes that conspiracy was seen to be a vital part of international law, albeit mainly for its evidentiary advan- tages, and that criminal charges against corporations were considered en- * The author wishes to thank Thane Rehn, as well as Z.W. Julius Chen and the other editors of the Columbia Law Review for their skillful assistance, patience, and confidence in an unorthodox essay. I gratefully acknowledge Cecelia H. Goetz, Ralph S. Goodman, Bernard D. Meltzer, Walter Rockler, Drexel A. Sprecher, Telford Taylor, and William A. and Belle Mayer Zeck, seven now-deceased prosecutors in the Nuremberg economic cases who shared their varied recollections with me in interviews stretching over a decade. I also thank the families of Leo M. Drachsler, Frederick Elwyn Jones, Abraham L. Pomerantz, Alvin Rockwell, Edwin M. Sears, and Telford Taylor for generously sharing private papers; Henry Friedlander for his skepticism and generous help with sources over the years; Yakar´e-Oul´e Jansen for help with Dutch sources; Camille l’Hermitte for help with French sources; Jasper Finke for help with German sources; Kaitlin Cordes and Jennifer Nam for research assistance; Wendy Morgan Lower for introducing me to her university’s collection; Marlene Trestman for Bessie Margolin documents; and Robert Cherny and Kim Christian Priemel for references to Judge Sears. For easing my way around their holdings, I thank the archivists at Llyfrgell Genedlaethol Cymru (the National Library of Wales), especially Glyn Parry; the Florida Supreme Court Library, especially Erik Robinson and Andy Edel; the U.S. National Archives; the U.S. Holocaust Memorial Museum, especially Henry Mayer; the Telford Taylor Papers at Columbia Law School, especially Sabrina Sondhi, Christopher M. Laico, Whitney Bagnall, and many reference librarians; Columbia University’s Oral History Collection; and the Gantt Collection in Towson University’s
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