Gregory M. Gilchrist (University of Toledo College of Law) has posted The Expressive Cost of Corporate Immunity (Hastings Law Journal, Forthcoming) on SSRN. Here is the abstract:
Is it possible to justify imposing criminal liability on corporations? Two of the most distinctive aspects of criminal law have no application to corporations: corporations cannot be jailed and they cannot form mens rea. Moreover, there is reason to think that much of the deterrent effect generated by corporate criminal liability could be generated more efficiently by civil liability. Still, the demand for criminal prosecution of corporations remains high. This article seeks to understand why we have corporate criminal liability and it concludes that only expressivism justifies the practice. Expressivism justifies punishment by reference to the benefits of a statement of moral condemnation. With regard to corporations, however, the power of expressivism is strongest in the absence of liability. While there may be some expressive benefit to holding corporations criminally liable, the expressive cost of excluding corporations from the criminal law altogether is the real driving force in justifying corporate criminal liability: immunity presents a materially harmful expression. This expressive cost of immunity justifies holding corporations criminally liable. Of course, just because it is possible to justify corporate criminal liability by reference to the expressive cost of immunity, it does not follow that the current practice of prosecuting corporations serves this end well. There are reasons to think it does not, but the relationship between expressivism and corporate criminal liability suggests a fruitful path toward reimagining how and when corporations ought to be subject to criminal liability. The path to reform is the subject of a subsequent article; this article lays the theoretical groundwork for reform.