Jan 8, 2025 Maria GranikCriminal Law
Criminal law aims to hold wrongdoers accountable for the harm they cause. As Deputy Attorney General Lisa Monaco put it when delivering her 2024 White Collar Crime National Institute Address: “[a]ccountability promotes fairness, drives deterrence, and fosters respect for the rule of law.” Are prosecutors successfully holding corporate wrongdoers accountable for the crimes they commit? Most commentators answer this question in the negative. In their recent paper, Thomas and Diamantis maintain that corporate criminal law is in crisis because the sanctions currently available to prosecutors neither deter misconduct nor express the moral condemnation usually attached to criminal sanctions. The authors make a bold proposal for reform: corporate branding. Their argument for reputational sanctions that shame corporate criminals is both original and persuasive.
Thomas and Diamantis begin by establishing that corporate punishments currently in use fail to serve the goals of criminal law. Criminal fines have limited effectiveness and run the risk of becoming merely “the cost of doing business” for companies that engage in profitable misconduct. As the authors point out, there is nothing that sets these sanctions apart as especially punitive in contrast to civil fines. In fact, criminal fines are often lower than civil penalties a company might face. In addition, prosecutors have no recourse when corporate criminals cannot afford to pay those fines. Individuals can be imprisoned for failure to pay, which imposes appropriate consequences and creates deterrence. Companies, by contrast, might have their fines lowered or get the benefit of pretrial diversion agreements that require a mere promise not to engage in criminal activity again—a promise that companies often break with impunity. Similarly, probationary supervision and mandatory compliance programs are insufficiently punitive and do not adequately punish and deter corporate crime. Continue reading "Rethinking Shame in Corporate Criminal Law"
Jan 7, 2025 James E. PfanderCourts Law
E. Garrett West,
Refining Constitutional Torts, 134
Yale L.J. __ (forthcoming 2025), available at
SSRN (Aug. 11, 2023).
In a bracing engagement with a constitutional tort doctrine that he rightly describes as in disarray, Garrett West offers a diagnosis and proposes a cure. The doctrine has an inconstant commitment to the history of common law tort and an off-again, on-again engagement with first the nullification and then the affirmative rights (or duty) models of constitutional litigation. He offers a “deceptively simple” cure for the problems: with a better understanding of the nature of constitutional duty, the Court might better construct a coherent body of law to define constitutional rights and remedies.
Recounting the troubles with constitutional litigation, West begins with a familiar set of concerns. Despite the recognition of constitutional tort liability in Monroe v. Pape for state action claims under § 1983 and in Bivens v. Six Unknown Agents for claims against federal officers, limits on the doctrines narrow access to remedies. Bivens gives way in the hands of a Court wary of recognizing rights to sue, while forms of absolute and qualified immunity complicate effective redress. West also highlights the Court’s inconsistent approach to defining the elements of a constitutional tort, sometimes drawing on common law tort doctrine to fill out the elements and sometimes focusing instead on the constitutional text and related considerations. Continue reading "Clarifying Constitutional Torts"
Jan 6, 2025 Gina-Gail FletcherCorporate Law
In the wake of the extrajudicial murders of George Floyd and Breonna Taylor, millions protested across the U.S. and worldwide against the racial and social injustices that persist within society. The 2020 “racial reckoning” protests were the largest racial justice demonstrations in the U.S. since the Civil Rights movement of the 1950s and witnessed a broad spectrum of society coming together to demand redress for pervasive inequities across race, gender, and socioeconomic lines. Even companies, that had traditionally preferred to stand on the sidelines with respect to racial justice issues, stepped into the fray, publicly declaring their support for racial justice and promising to do their part to combat racial inequities. As part of these efforts, hundreds of companies since 2020 have voluntarily pledged to increase people of color within their ranks, specifying numerical targets and timelines for achieving these goals.
In her new paper, Racial Targets, published in Northwestern Law Review, Professor Atinuke Adediran tackles the thorny question: are corporate racial targets legally permissible? Adediran joins in conversation with several scholars who have been considering how the 2020 “racial reckoning” has impacted corporate behavior. To do so, she examines voluntary racial goals (i.e., racial targets) that companies have publicly established for themselves in response to shareholder, investor, and employee pressures to support racial equity. Adediran argues that racial targets are meaningfully distinct from racial quotas and, as such, despite the constitutional illegality of the latter, the former are within the boundaries of the law. Continue reading "Racial Goals & Private Companies: What’s Legal & What’s Not"
