Corporate Criminal Minds

Mihailis E. Diamantis*

In order to commit the vast majority of crimes, corporations must, in some sense, have mental states. Lawmakers and scholars assume that factfinders need fundamentally different procedures for attributing mental states to corporations and individuals. As a result, they saddle themselves with unjustifiable theories of mental state attribution, like respondeat superior, that produce results wholly at odds with all the major theories of the objectives of criminal law.

This Article draws on recent findings in cognitive science to develop a new, comprehensive approach to corporate mens rea that would better allow corporate criminal law to fulfill its deterrent, retributive, and expressive aims. It does this by letting factfinders attribute mental states to corporations at trial as they ordinarily do to similar groups out of the courtroom. Under this new approach, factfinders would be asked to treat corporate defendants much like natural person defendants. Rather than atomize corporations into individual employees, factfinders would view them holistically. Then, factfinders could do just what they do for natural people—in light of surrounding circumstances and other corporate acts, infer what mental state most likely accompanied the act at issue. Such a theory harmonizes with recent cognitive scientific findings on mental state and responsibility attribution, developments that corporate liability scholars have mostly ignored.

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© 2016 Mihailis E. Diamantis. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Associate Professor, University of Iowa College of Law. Written while an Associatein-Law at Columbia Law School. I owe special thanks to Professors Robert Ferguson, Kent Greenawalt, Philip Hamburger, Bernard Harcourt, Joshua Kleinfeld, Jody Kraus, James Lindgren, Michele Papa, Daniel Richman, Paul Robinson, Scott Shapiro, and Amy Sepinwall, for helpful comments and encouragement. Thanks are also due to Anthony Deardurff, Lee Lieberman Otis, Tom Sprankling, and the participants in the Columbia Law School fellows’ workshops.