“No Soul to Damn: No Body to Kick”: An Unscandalized Inquiry into the Problem of Corporate Punishment

Because this Article’s arguments are interwoven, a preliminary roadmap seems advisable. First, Section I will examine three perspectives on corporate punishment and will develop several concepts in terms of which corporate penalties should be evaluated. Although this analysis will suggest several barriers to effective corporate deterrence, Section II will explain why a sensible approach to corporate misbehavior still must punish the firm as well as the individual decision- maker. Section III will then evaluate three proposed approaches: (1) the “equity fine,” (2) the use of adverse publicity, and (3) the fuller integration of public and private enforcement. In addition, it will consider whether anything is gained by prosecuting the corporation in a criminal, as opposed to civil, proceeding. Finally, Section IV will look beyond remedies designed to increase deterrence to the possibility of incapacitative sanctions. This latter inquiry is promoted by recent judicial decisions and legislative proposals that permit courts to place corporations on probation. Interesting questions are thus presented: Can an organization be rehabilitated? If so, what goals should the sentencing court pursue and what remedies can it realistically implement?