Corporate Coverture.

• Author: Sepinwall, Amy J.

1. INTRODUCTION 1071 II. COVERTURE'S UNITY THEORY OF LIABILITY 1073 III. HIERARCHY IN THE RELATIONSHIP 1079 IV. THE COVERED CORPORATION AND CRIMINAL LAW 1084 IV. CONCLUSION 1087 I. INTRODUCTION

   This Article primarily addresses the first of two questions at the heart of the debate on corporate criminal responsibility: First, when is a criminal act of a member of the corporation attributable to the corporation? And second, in situations where we can accurately say that the corporation has committed a crime, what individual or entity should the law target, and on what grounds?

   Federal law answers the first question through an appeal to vicarious liability. The corporation is criminally liable for a crime committed by an employee in the scope of employment for the benefit of the corporation. (1) But that answer is notoriously unsatisfying. (2) It would hold the corporation criminally liable even if the employee acted against the express policy of the corporation. (3) Section 2.07 of the Model Penal Code (MPC), adopted in many states, offers a more direct route to criminal liability: an employee's crime becomes a crime of the corporation if, but only if, the crime was ordered, authorized, or recklessly tolerated by a high-ranking manager. (4) Yet, if the federal approach sweeps too broadly, one might worry that the MPC approach fails to sweep broadly enough. The MPC makes the executive's knowledge of the crime at the time of its occurrence an element of the crime, whereas it may be that something less than knowledge should suffice. (5)

   In this Article, I seek to offer a different alternative to federal law's vicarious liability rationale and the MPC's executive knowledge criterion, which I cull from what may well seem an unlikely place--the now discredited doctrine of marital coverture. Under coverture, the marital union of a man and woman created a single juridical unit--the husband. (6) As a result, all the wife's possessions became the husband's alone, and so too did most of the wife's legal claims--e.g., her ability to sue in tort or enter into a contract. Still, this arrangement was not an unmitigated good. It saddled husbands with legal liabilities in addition to newfound wealth and power by making husbands liable for their wives' torts and crimes. (7) Coverture was rightly jettisoned from the law for its obvious sexism. (8) I shall argue, however, that the grounds of liability it presupposed aptly capture the ways liability should operate within the institutional setting of the corporation.

   More specifically, we can recover two different theories that supposedly justified holding a husband liable for the crimes or torts of his wife--one based in unity and the other based in hierarchy. The marital unity theory, advanced in Part I, saw the wife's acts as attributable to her husband because all of her acts were in the service of their joint project--viz., their marriage or shared life together. Now the fact of marital unity ought to have entailed that the wife would be held responsible for the crimes of her husband, too. But the fact that coverture did not contemplate that husband and wife share equally in the joint project of the marriage does not mean that its theory for attributing the wife's acts to the husband did not contain a kernel of shared agency that we can usefully recover and put to more egalitarian ends.

   The hierarchical theory, deployed in Part II, picked up on the husband's domination of his wife. She acted under his direction. Importantly, "direction" under coverture was understood in far broader terms than, say, MPC [section]2.07 contemplates. There need have been no specific directive or even knowledge of her act. The husband's direction could instead be diffuse, but it was also omnipresent and backed by sanctions from which she could not readily escape. As a result, it would have been unfair to hold the wife criminally responsible for the acts she committed within this coercive relationship. In what follows, I argue that each of these theories--the shared responsibility of marital unity; the transferred responsibility of the hierarchical account--provides a compelling path for attributing employee crimes to the corporation.

   Some theorists of corporate criminal liability stop at this point: Once they have identified what they take to be a compelling connection between the crime and the corporation, they conclude that the law ought to prosecute and punish the corporation. But I think that conclusion is too hasty. In Part III, I argue that coverture's grounds of liability do not provide a decisive defense of corporate criminal law, but they do offer compelling considerations in its favor. I end by identifying ways that the account advanced here might be felicitous for combatting corporate crime and vindicating our responses to it.

2. COVERTURE'S UNITY THEORY OF LIABILITY

   Prior to the 20 (th) Century, marriage entailed the almost total subsumption of a woman's legal personality to her husband. As Blackstone wrote:

   By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs everything; and is therefore called ... a femme-covert; and her condition during her marriage is called her coverture. (9) "Marital coercion" describes the dimension of coverture that made a husband liable in tort and crime for most of his wife's transgressions. (10) But "coercion" is a misleading term in two respects. For one thing, the element influencing the wife need not have been threatening at all; she may instead have been in the grip of romantic love and spousal fidelity. For another, whatever coercion there was need not have involved an imminent threat, which is how many contemporary moral philosophers define the term (11) and how the law defines duress. (12) We have, then, two grounds of liability under coverture--attachment and (diffuse) coercion. (13) This Part addresses the first of these, and Part II addresses the second.

   One can recover in the conjugal liability cases a rationale for ascribing the wife's transgression to her husband rooted in a romantic conception of a married couple as a unit. (14) The doctrine of conjugal unity was biblical in origin: (15) Since woman originated from man--she is the flesh of his flesh--the marital union was taken to effect a reunion, restoring the two to "one flesh." (16) In what follows, I aim to draw out criminal law's ample evidence of this unity. While the examples come from discrete criminal law doctrines, the unity on which they rely bears not merely a family resemblance to coverture; instead, it is coverture itself that grounds this unity. (17)

   Under common law, neither spouse could commit larceny against the other since the marital property was held in one person. (18) One might think this rule uninteresting. After all, if a husband takes ownership of all of his wife's property, then there is nothing for either of them to steal--he cannot steal what is his own, and she who cannot own cannot steal. But the cases have the rule rest not on the property relations that existed between them but instead on "the unity of husband and wife which marriage created; the community of interest in the social institution of marriage." (19) As one court expounded, the husband's "ownership and control of [the wife's] personal property was not alone sufficient to justify the doctrine as to her immunity. Something more was needed to protect her, and that was the unity of the social relationship of marriage, giving the word 'social' its broadest meaning." (20) That statement was echoed in People ex rel. Felmere v. Rapp: "[T]he common law rule that a wife cannot commit larceny by appropriating her husband's property rests not alone upon the doctrine that his property and possessions are hers but upon the sacred unity of husband and wife which the marriage created." (21)

   A wife who harbored her husband after he had committed a criminal act could not be prosecuted as an accessory after the fact. Importantly, courts recognized that "the woman's participation in the criminal activity was prompted, not by fear of victimization by her husband, but by her desire to protect him from apprehension." (22) Far from being coerced, then, she operated on "a motive that the contemporary culture, the common law judges, and, possibly, the woman herself might construe...as affection for the husband and fidelity to his interests." (23) While the rule originally exempted only wives from criminal liability for harboring their husbands, an egalitarian version of the policy persists to the current day. (24)

   We can view the spousal privilege in testimony in a similar vein. That a wife could not be called upon to testify against her husband was largely due to their supposed unity. As Lord Coke wrote, "a wife cannot be produced either against or for her husband, quia sunt duae animae in carna una [who are two spirits in one flesh]... ." (25) But the couple's merger into a single legal person was not the only rationale. Instead, "the protection of marital confidences [was] regarded as so essential to the preservation of the marriage relationship as to outweigh the disadvantages to the administration of justice which the privilege entail[ed]." (26)

   Closely related was the idea that slander could not be spoken as between a husband and wife. (27) The language for this idea speaks tellingly in favor of marital unity: "[w]hen husbands and wives talk to each other alone, the conversation differs but little from the process of talking to one's self, or, as it is sometimes called, 'thinking aloud.'" (28) There is, of course, an offensively sexist reading of this language if one supposes that courts assumed that no genuine dialogue occurs between man and wife. But a more romantic conception, and almost...