Corporate Crime and Making Amends
![handle is hein.journals/amcrimlr44 and id is 1315 raw text is: CORPORATE CRIME AND MAKING AMENDS
William S. Laufer* and Alan Strudler**
INTRODUCTION
Increasing calls for limits on the use of corporate criminal liability naturally
follow periods of heightened regulatory scrutiny.1 The cyclical history of corporate
scandals, resulting in law reforms, active law enforcement, subsequent periods of
regulatory laxity, and new scandals, invites the specter of over-criminalization.2 In
the aftermath of the most recent spate of scandals, the post-Enron era, conservative
and libertarian concerns about the overreaching of criminal law must account for
an emerging trend: The pre-trial diversion of large entities through plea agree-
ments that ask offending corporations to simply make amends. Corporate making
amends allows miscreant corporations of scale to express remorse, engage in a
reincarnation through compliance, and resume business as a reformed non-
offender. In this article, we ask how the principles and practices of making amends
or restorative justice connect with standards of corporate culpability and liability
and, ultimately, questions of fairness.
Over the last 100 years, the attention given to corporate punishment has
dramatically overshadowed efforts to make sense of the connections between and
among corporate personhood, liability, and culpability. Below we point to a small
number of examples that reveal failed connections, what we call congruence
problems, between and among the basic premises of corporate criminal law.
Perhaps most obvious is the design of Sentencing Guidelines for Organizations
and more recently, a series of highly publicized prosecutorial guidelines, both of
which create new conceptions of corporate liability and culpability forming a new
* (J.D., Ph.D.) Professor of Legal Studies and Business Ethics, Sociology, and Criminology; Director, Carol &
Lawrence Zicklin Center for Business Ethics Research, The Wharton School, University of Pennsylvania.
** (J.D., Ph.D.) Associate Professor of Legal Studies and Business Ethics; Director, Ethics Program, The
Wharton School, University of Pennsylvania.
1. For a discussion of these episodic periods, see WILItAM S. LAUFER, CORPORATE BODIES AND GuIrY MINDs:
THE FAILURE OF CORPORATE CRIMINAL LIABILITY (2006) [hereinafter LAUFER, CORPORATE BODIES].
2. See generally John Hasnas, Ethics and the Problem of White Collar Crime, 54 Am. U. L. REv. 579 (2005).
There is a growing consensus that too much is already asked of the federal criminal law. Critics point to its
unrelenting growth; the political and institutional incentives that drive the persistent passage of new crime
legislation; the increasing severity of associated sanctions; and the fact that the federal criminal law already
encroaches on the province of state criminal law in indefensible ways. Edwin Meese 1I1, who chaired an American
Bar Association task force on the federalization of criminal law in the late 1990s, speaks of an explosive growth of
laws that duplicate state laws, centralizing power at the national level in an effort to foster the illusion of crime
control.
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Corporate Crime and Making Amends
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