149 See, e.g., Samuel Buell, The Blaming Function of Entity Criminal Liability, 81 Ind. L.J. 473, 491 (2006) (“Further, the criminal process can impose a unique form of reputational sanction, the effects of which can flow through to institutional members in ways that promise to deter individual wrongdoing and promote group endeavors toward compliance. No non-criminal legal process can fully replicate these effects.”). 150 See, eg., Corporations, Crime and Accountability at 39-40; K.G. Elzinga & W. Breit, The Antitrust Penalties, A Study in Law and Economics at 38 (Yale University Press 1976); C. D. Stone, The Place of Enterprise Liability in the Control of Corporate Conduct, 90 Yale Law. J. 1 (1980).. 151 California Supply Transparency Act, CITE NEEDED.
such labor, but the expectation is that the public’s disapproval of such use will affect the attractiveness of products sold directly or indirectly into the public market. Whether the indirect use of labor makes a company evil is beside the point; there is a clear incentive to be entirely conflict mineral-free from a marketing perspective. There is, of course, some moral judgment that the use of child or forced labor is bad, but the point of the law is simply to get corporations to stop purchasing directly or indirectly from entities that employ such methods. A company that makes the judgment to eliminate such practices from its supply chain is not doing so (or at least, not necessarily doing so) because it wants to do the “right thing.” It is doing so for the same pragmatic reasons that might lead it to make a product that was “green” or “energy efficient” even if its officers and directors actually had no concern for the environment as such. 152 Indeed, at some point, such decisions may even make the directors liable for breach of their fiduciary duty to the shareholders. 153 The simplicity of this approach has a great deal to recommend it. For example, it is hard enough for politicians to agree on existing facts and probable outcomes. Asking them to agree on ethical judgments may require more from them than is reasonably possible. The entire analysis resolves into a purely technical, factual question of whether incentive A will result in outcome B. This is a questions for sociologists and economists; philosophers need not apply. An examination of the literature confirms that much discussion of the application of criminal law to organizations tends to take place on this level. From a public policy perspective, this reductionist approach may be appropriate. For everyone to set aside the possibility of ethical judgments of organizations may, however, be too much to ask. Indeed, this purely functional view does not appear to be entirely consistent with the common ethical intuition. Enron is not used as a technical example of an organization whose incentives were not properly designed; it is viewed as an example of an “evil” company. Similarly, the recent public discussions of the Deepwater Horizon
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- Summer '14
- Ethics, criminal law, Corporate Criminal Liability