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18 Am. J. Crim. L. 263 (1990-1991)
Why Personhood Doesn't Matter: Corporate Criminal Liability and Sanctions

handle is hein.journals/ajcl18 and id is 271 raw text is: Why Personhood Doesn't Matter:
Corporate Criminal Liability and Sanctions
Steven Walt* & Wililiam S. Laufer**
Contemporary corporate criminal law is modelled on individual
criminal law. Substantive bases of liability, evidence, procedure and
rationale have been constructed initially for individuals. Over the
years, doctrine has been transposed to corporations.' The model con-
tains two features. One is an identification of persons as the subjects
of criminal law. The other feature is an assumption that the elements
of criminal law applicable to individuals also apply to all persons.
There is a notable exception. Recently proposed federal sentencing
guidelines for organizations explicitly recognize the difference between
individuals and corporations.2 But predominant practice remains in-
dividualistic: corporations are treated as persons in the way that in-
dividuals are treated. Constitutional protections of corporations, often
analyzed in terms of individual persons, illustrate the practice.3 So do
* Assistant Professor of Law, University of San Diego School of Law. B.A., Kalamazoo College,
1976; M.A., University of Chicago, 1978; Ph.D., University of Chicago, 1984; J.D., Yale Law School,
**   Assistant Professor of Legal Studies, The Wharton School, University of Pennsylvania. B.A.,
Johns Hopkins University, 1979; J.D., Northeastern University, 1983; Ph.D., Rutgers, 1987.
1. For a history of the development of corporate criminal liability, see K. BricKEY, 1 CoRPoRATE
Ci mNALLaLanrry §§ 2:01-2:09 (1984); Comment, Corporate Criminal Liability For Homicide: Has
The Fiction Been Extended Too Far?, 4 J. L. & CoM. 95 (1984); Elkins, Corporations and the Criminal
Law: An Uneasy Alliance, 65 Ky. L. J. 73 (1976).
2. United States Sentencing Commission, Discussion Draft of Sentencing Guidelines and Policy
Statements for Organizations: Proposed Chapter Eight for the Guideline Manual 8.1 (July 1988)
[hereinafter Discussion Draft]; United States Sentencing Commission, Sentencing of Organiza-
tions-Chapter Eight (March 1990) [hereinafter Chapter Eight]. See also Parker, Criminal Sentenc-
ing Policy for Organizations: The UnifiedApproach of Optimal Penalties, 26 AM. CriM. L. REv. 513,
534 (1984). Cf. Strasser, Lighter Corporate Sentencing?, NAT'L L. J., April 9, 1990, at 38 (What he
is trying to do, [Chairman Wilkens] said, is create a new conceptual framework for the complicated
problem of sentencing non-persons.).
3. See, e.g., First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978) (first amendment);
Austin v. Michigan Chamber of Commerce, 58 U.S.L.W. 4371,4383 (U.S. March 27,1990) (Kennedy,
J., dissenting) (prohibition on political debate in candidate elections based on speaker's identity is
constitutionally defective); Santa Clara v. Southern Pacific R. R. 118 U.S. 394 (1886), Minneapolis &
St. L. Ry. v. Beckwith, 129 U.S. 26 (1889) (fourteenth amendment); Wilson v. United States, 221 U.S.
361 (1911); Hale v. Henkel, 201 U.S. 43 (1906) (fifth amendment). See also Patton & Bartlett,
Corporate Persons and Freedom of Speech: The Politics of Legal Mythology, 1981 Wisc. L. REv.
494; Note Constitutional Rights of the Corporate Person, 91 YALE L. J. 1641 (1982); Hager, Bodies
Politics: The Progressive History of Organizational Entity Theory, 50 U. Prrr. L. REv. 575, 639-54


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