The Corporate Response approach may have some analytical use as part of a larger effort to establish corporate culpability in a criminal context. If, for example, the Lax Corporation does nothing when an allegation of suspect conduct comes to the attention of its management, that could be construed as suggestive that the organization condones or approves of such conduct. On the other hand, such failure to act could result from paralysis of decision-making or an inability to formulate a response. Thus, the Corporate Response paradigm is open to too many contradictory interpretations. The problem of using the Corporate Response model outside the standard hierarchical organization becomes even more apparent in the context of the bird-watching club. Because the organization is so unstructured, it may simply lack the ability to respond to an allegation that one of its members has acted unethically. To avoid unfairly characterizing the organization as unethical, it would have to be excluded entirely from consideration by this model. Nor is this limited to social clubs. Partnerships, family businesses, charitable organizations, and other non-hierarchical entities may also fail to respond, not as a result of ethical deficiency, but because of internal paralysis or organizational power. Inversely, a positive action might not be motivated by ethically approved considerations. The fear of punishment, of lawsuits, of individual impact all affect the organization’s actual response. As a result, even the lax corporation could have an apparently admirable reaction to allegations of improper conduct. In sum, the Corporate Response model might have some use in the context of a larger framework, or as part of a sentencing protocol, but it does not itself constitute a satisfactory approach to organizational intent. Collective Intent/Aggregation Theory There is a substantial body of literature that asserts that there exists a collective intent separate and distinct from the organization’s constituent individuals. 132 As one writer explained, 129 There are some questions even as to this limited usefulness. “Bucy's proposal provides few standards, invites prosecutors to appeal to the anti-corporate sentiments of some jurors, and probably would yield outcomes based mostly on the jurors' proclivities, the trial lawyers' rhetoric, and how much harm the defendant's agents had caused.” Albert W. Alschuler, Two Ways To Think About The Punishment Of Corporations, 46 Am. Crim. L. Rev. 1359, 1379 (Fall, 2009). 130 There is some ambiguity whether his proposal is entirely “reactive” or is a mix of the proactive and the reactive. To the extent it contains an element of the proactive, it suffers from all the defects of that approach discussed supra .
- Summer '14
- Ethics, criminal law, Corporate Criminal Liability