The blameless corporation.

• Author: Thompson, Larry D.
• Position: Corporate criminal liability - Achieving the Right Balance: The Role of Corporate Criminal Law in Ensuring Corporate Compliance

On April 21, 2009, the Georgetown University Law Center hosted a Symposium on "Achieving the Right Balance: The Role of Corporate Criminal Law in Ensuring Corporate Compliance." (1) The following are transcribed remarks excerpted from the daylong event.

INTRODUCTION

Good afternoon. One thing you can discern from Cheryl's wonderful introduction is that I'm old and I've been around a long time. I really have been around a long time and have experienced, as a defense lawyer and as a prosecutor, this issue of corporate criminal liability, and I've been thinking about it for a long time and it's really good to be able to talk to my colleagues about this. I had a script, not a script but

a prepared talk that I was going to give, and I gave it to the Editor of the law review, I just kind of want to talk informally this afternoon with you.

If you look at my essay that I wrote in 1992 you'll see a quote and it's the following: "White collar crime is the most serious and all pervasive crime problem in America today." So, you might think, if you don't look at it, who wrote that? Was it Ralph Nader, was it Barney Frank, or some other member of Congress? No, this was written by the former Chief Justice Rehnquist. The quote illustrates the problem that we have with corporate criminal liability. There has always been a sense of hysteria, a sense of urgency, associated with corporate criminal law. The whole state of what you might call corporate criminal law, I think, is in a mess and there are two aspects of the mess I would like to discuss both of them with you this afternoon.

The first aspect is this abiding sense of unfairness as it relates to the corporate criminal process. What I mean by that is, is it really possible for a corporation to submit itself to a jury trial? As all of you know, a corporation is a person under the eyes of the law. If you and I were under investigation and we thought that the government had gotten it wrong and the government's investigation was ill-conceived, then we have a constitutional fight to challenge the government, have a jury of our peers, and take the government to trial. This is one of the real conundrums and I want to talk about that this afternoon. There is another sense in which the state of corporate law is a mess and, that is, there is a sense of futility. I read you that quote and that came from the case United States v. Brazwell, I believe it's a 1980 case, but we have this sense of futility that we've had a for a long time, but we're still having scandals. We had a scandal in 2002 now we've had sort of scandals, if not worse, in 2008 and I think a lot of people are saying what can we do about corporate wrongdoing in the corporate context.

So, let me talk about those issues, but before I do, I look around the room and I see so many friends and colleagues and some people in academia, Ellen Podgor who is a former professor at Georgia State University and I've lectured at her classes. Sara Beale, who is a professor at Duke Law School, and Sara and I graduated from law school together at the University of Michigan. And Cheryl mentioned I spent a wonderful semester as a visiting professor at the University of Georgia Law School and it was just a wonderful time before I joined PepsiCo, this was between government and PepsiCo. Now, I know there are frustrations in any profession, but one of the things that happens or one of the things I think about when I...