Rethinking Corporate Liability under the Model Penal Code
![handle is hein.journals/rutlj19 and id is 603 raw text is: RETHINKING CORPORATE LIABILITY UNDER
THE MODEL PENAL CODE
Kathleen F. Brickey*
I. INTRODUCTION
Corporate criminal liability is a paradox. Its contradictions create a
cat's cradle, forming an endless loop that, on one person's hands, suggests
art imitating life, but on another's, hints at life miming art. Just as
primitive art and artifacts depicted inanimates, beasts and gods as
creatures possessed of human traits, so did common-law courts breathe life
into the corporate form. Through this feat of anthropomorphic sleight of
hand, the common law subtly transformed the inanimate corporation
into a person capable of committing criminal delicts and harboring
criminal intent. Thus did we receive this species of liability into our
criminal law jurisprudence.
Although the principle that a corporation might be accountable for
the crimes of its agents has roots in seventeenth century English law,1 not
© Copyright 1987 by Kathleen F. Brickey.
* Professor of Law, Washington University. Although the Model Penal Code has
largely become the principal text in criminal law teaching [and] the point of departure for
criminal law scholarship, Kadish, The Model Penal Code's Historical Antecedents, 19
RUTGERS L.J. 521, 521 (1988), surprisingly little has been written about its dauntingly
complex rule of corporate liability. This article undertakes the task of dissecting the Model
Penal Code rule and its supporting rationale. In so doing, the article assumes the status quo,
i.e., recognition of the principle that corporations are amenable to criminal prosecution. It
does not endeavor to add to the voluminous body of literature devoted to the philosophical
wisdom of or economic justification for (or the lack thereof) recognizing corporate criminal
liability in the first instance. See, e.g., Fisse, Reconstructing Corporate Criminal Law:
Deterrence, Retribution, Fault, and Sanctions, 56 S. CAL. L. REV. 1141 (1983), and
sources cited therein at 1143-44 nn.l-2.
During the course of my work on this article, insights provided by numerous colleagues
informed my thinking on this and a range of related issues. I especially want to thank John
Drobak, Dan Ellis, Frank Miller, and Bob Thompson, together with the usual suspects
rounded up at the Conference with their gendarme, Professor Herb Wechsler. I am also
indebted to my research assistant, Rosalie Crouch, whose service to the cause was
exemplary.
An earlier draft of this article was presented at A Conference Celebrating the 25th
Anniversary of the Model Penal Code, sponsored by Rutgers University School of Law-
Camden and the American Law Institute and held November 5-7, 1987 at Rutgers Law
School, Camden, New Jersey.
1. See, e.g., Case of Langforth Bridge, 79 Eng. Rep. 919 (K.B. 1635) (corporation
may be liable on presentment for nonfeasance).](ViewImageLocal?handle=hein.journals/rutlj19&div=33&collection=journals&method=preview&ext=.png&size=3)
What Is HeinOnline?
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most
Rethinking Corporate Liability under the Model Penal Code
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most