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78 Calif. L. Rev. 1287 (1990)
Corporate Criminal Intent: Toward a Better Understanding of Corporate Misconduct

handle is hein.journals/calr78 and id is 1300 raw text is: Corporate Criminal Intent: Toward a Better Understanding of Corporate Misconduct Ann Foerschlert Although corporations can be persons in certain legal contexts, they cannot so easily be criminals. Recognition of criminal liability for corpo- rate entities has been slow in coming in the law. The prosecution of corpo- rations for intent crimes has been particularly problematic. For such crimes, the law has attempted to anchor the criminal liability of corpora- tions to the intent of individuals within the corporation. Organizational theory, through its several models of corporate decisionmaking, confirms that borrowing intent from individual corporate actors may not be produc- tive, since some corporate acts can never be traced to the intent of any one individual This Comment suggests a framework to replace the conven- tional rule of imputing criminal intent directly from individuals to the cor- poration. The author adopts a framework with a nonreductionist approach, looking solely to corporate practices and policies for the inquiry. The author creates a three-part test to determine corporate intent, asking whether a corporate practice or policy violated the law, whether it was rea- sonably foreseeable that such a policy would lead a corporate agent to vio- late the law, or whether the corporation adopted that agent's violation of the law. The author argues that this framework more accurately identifies culpability for criminal acts within complex corporate structures. INTRODUCTION The issue of corporate criminal liability raises a number of difficult questions. Ample scholarly discourse has addressed several of these questions. For example, numerous comments and articles have discussed the justifications for imposing criminal liability on corporations.1 Simi- larly, various legal scholars have analyzed the imposition of sanctions on t B.A. 1988, Trinity University; J.D. candidate 1991, Boalt Hall School of Law, University of California, Berkeley. I would like to thank Professor Angela Harris, Professor Bryan Ford, Professor Jan Vetter, Richard Flisher, Maria Crisera, Audra Eckerle, and the members of the California Law Review for their helpful comments and assistance in preparing this Comment. I would especially like to thank Dr. John Lindquist of Trinity University who provided the impetus for this Comment. 1. See, eg., Edgerton, Corporate Criminal Responsibility, 36 YALE L.J. 827 (1927) (arguing that a corporation should be liable for any crime committed by its employees in the course of their employment and urging the same justifications for corporate liability as are found in cases of individual liability); Lederman, Criminal Law, Perpetrator and Corporation: Rethinking a Complex 1287

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