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11 Sydney L. Rev. 468 (1986-1988)
The Allocation of Responsibility for Corporate Crime: Individualism, Collectivism and Accountability

handle is hein.journals/sydney11 and id is 476 raw text is: THE ALLOCATION OF RESPONSIBILITY FOR CORPORATE CRIME: INDIVIDUALISM, COLLECTIVISM AND ACCOUNTABILITY BRENT FISSE* JOHN BRAITHWAITE** I Introduction: Contemporary Problems of Accountability for Corporate Crime' Two major problems of accountability confront modern indus- trialised societies in their attempts to control wrongdoing committed by larger scale organisations. 2 First, there is an undermining of individual accountability at the level of public enforcement measures, with corporations rather than individual personnel typically being the prime © 1988 Brent Fisse and John Braithwaite * Professor of Law, University of Sydney. The research assistance of Graeme Coss is gratefully acknowledged. Thanks are also due to the Max Planck Institute, Freiburg, for generously hosting a research visit. ** Professorial Fellow, Department of Law, Research School of Social Sciences, Australian National University. I Crime is taken to mean a criminal offence or penalty-carrying violation under existing law, and corporate crime crime which is legally attributable to a corporate entity or any individual persons acting on its behalf. See further E. H. Sutherland, White Collar Crime: The Uncut Version (1983) ch. 1; D. R. Simon and D. S. Eitzen, Elite Deviance (1983) at 22-23; G. Gels, Criminological Perspectives on Corporate Regulation, in B. Fisse and P. A. French, eds., Corrigible Corporations and Unruly Law (1985) 63 at 74-75; L. Orland, Reflections on Corporate Crime: Law in Search of Theory and Scholarship (1980) 17 American Criminal Law Review 501; P. C. Yeager, Analyzing Corporate Offenses: Progress and Prospects (1986) 8 Research in Corporate Social Performance and Policy 93. Our main focus is private as opposed to governmental corporate crime; whether corporate criminal liability should be confined to private corporations is however an open question: see further C. D. Stone, Corporate Vices and Corporate Virtues: Do Public/Private Distinctions Matter? (1982) 130 University of Pennsylvania Law Review 1441; B. Fisse, Controlling Governmental Crime: Issues of Individual and Collective Liability in P. Grabosky, ed., Government Illegality (1987). 2 We are not concerned here with the problem, formidable as it is, of corporate crime in the context of smaller organisations (e.g., leveraged currency dealers) where the main concern is not the balance to be struck between corporate and individual responsibility but rather the difficulty of taking timely and effective action against individual persons who act fraudulently under corporate guise. See further Corporate Affairs Commission Strategy, News Release, Premier of New South Wales, 21 Oct. 1987; A. Freiberg, Abuse of the Corporate Form: Reflections from the Bottom of the Harbour (1987) 10 University of New South Wales Law Journal 67. Nor are we concerned with corporate crime in the sense of crime committed by employees against their employer (e.g., embezzlement) or by white collar offenders generally (compare U.S., Department of Justice, Bureau of Justice Statistics, White Collar Crimes (1987)).

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