No Soul to Damn: No Body to Kick: An Unscandalized Inquiry into the Problem of Corporate Punishment
![handle is hein.journals/mlr79 and id is 408 raw text is: NO SOUL TO DAMN: NO BODY TO KICK:
AN UNSCANDALIZED INQUIRY INTO
THE PROBLEM OF CORPORATE
PUNISHMENTt
John C Coffee, Jr. *
Did you ever expect a corporation to have a conscience, when it has no
soul to be damned, and no body to be kicked?'
Edward, First Baron Thurlow 1731-1806
The Lord Chancellor of England quoted above was neither the
first nor the last judge to experience frustration when faced with a
convicted corporation.2 American sentencing judges are likely to
face a similar dilemma with increasing frequency in the near future,
for a number of signs indicate that corporate prosecutions will be-
come increasingly commonplace.3 At first glance, the problem of
corporate punishment seems perversely insoluble: moderate fines do
t © 1980 John C. Coffee, Jr.
* Professor of Law, Georgetown University Law Center; 1980-1981, Visiting Professor of
Law, Columbia University School of Law. B.A. 1966, Amherst College; LL.B. 1969, Yale
University; LL.M. 1976, New York University - Ed. This Article draws in part on the 1980
Governor James R. Thompson Lecture I delivered at the Northern Illinois University College
of Law.
1. Quoted in M. KING, PUBLIC POLICY AND THE CORPORATION 1 (1977). One version,
probably apocryphal, reports that the Lord Chancellor then added in a stage whisper, [a]nd,
by God, it ought to have both. H.L. MENCKEN, A NEW DICTIONARY OF QUOTATIONS ON
HISTORICAL PRINCIPLES FROM ANCIENT AND MODERN SOURCES 223 (1942).
2. Long before Baron Thurlow's time, ecclesiastical courts had responded to corporate
misbehavior by imposing the decree of excommunication. This probably represents the first
occasion on which the anthropomorphic fallacy that the corporation was but an individual
misled courts. It was not the last. In the thirteenth century Pope Innocent IV forebade the
practice of excommunicating corporations on the unassailable logic that, since the corporation
had no soul, it could not lose one. He thus became the first legal realist in this area.
3. Between 1976 and 1979, 574 corporations were convicted in the federal courts. See
Orland, Reflections on Corporate Crime: Law in Search of Theory and Scholarship, 17 AM.
CRIM. L. REV. 501, 501 n.4 (1980). A comprehensive review by the editors of Fortune maga-
zine has found that 11% of the 1,043 major corporations it surveyed were involved in a major
delinquency between 1970 and 1980 (a term it defined to include five crimes - bribery,
criminal fraud, illegal political contributions, and price-fixing or bid-rigging antitrust viola-
tions - regardless of whether the enforcement proceeding was brought in the form of a crimi-
nal or a civil action). See Ross, How Lawless Are Big Companies, FORTUNE, Dec. 1, 1980, at
56, 57. The extraordinary media attention given to the unsuccessful prosecution of the Ford
Motor Company for manslaughter for allegedly failing to correct known defects in the design
of its Pinto model may hasten this trend toward greater use of the criminal sanction. State v.
Ford Motor Co., No. 5324 (Ind. Super. Ct., filed Sept. 13, 1978). Other straws are also blowing
in the wind. See Courie, Justice Maps Out CriminalApproach For Health, Safety, Legal Times
of Wash., Feb. I1, 1980, at 1, col. 1.](ViewImageLocal?handle=hein.journals/mlr79&div=36&collection=&method=preview&ext=.png&size=3)
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No Soul to Damn: No Body to Kick: An Unscandalized Inquiry into the Problem of Corporate Punishment
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