Despite occasional criticism, the long-standing rule that a corporation is criminally liable for the acts of its employees done within the scope of their employment and for the corporation’s benefit is firmly ensconced in our jurisprudence. To suggest that we revisit this principle, while therapeutic, might appear to be an exercise in futility. And it may well be. However, the daily drama of Arthur Andersen and Enron highlights many of the reasons why we should reassess this fundamental premise of corporate criminal liability. If the rule is to remain unchanged, it should only remain so after thoughtful consideration, not because it is a historical weed that grew, as Gerhard O.W. Mueller wrote, without breeding, cultivation, or planting.[1]�
This article does not take issue with the premise that a corporation can be criminally liable. The question is whether the current standard for assessing liability best serves the multiple goals of our criminal justice system.
