The Yale Law Journal

October 2008

Comparative Corporate Criminal Liability: Exploring the Uniquely American Doctrine Through Comparative Criminal Procedure

Edward B. Diskant

118 Yale L.J. 126 (2008).

In the United States, corporations—as entities—can be criminally tried and convicted for crimes committed by individual directors, managers, and even low-level employees. From a comparative perspective, such corporate liability marks the United States as relatively unique. Few other Western countries impose entity liability, and those that do impose such liability comparatively infrequently and under the threat of far less serious punishment. The question of why the United States—and the United States virtually alone—imposes corporate criminal liability has been the subject of limited scholarly attention. This Note seeks to fill that void through the prism of comparative law. Using Germany—a country that imposes no corporate criminal liability—as a foil, this Note argues that the American doctrine can best be explained not through criminal theory but rather through criminal procedure. American criminal procedure imposes unique difficulties on American investigators and prosecutors seeking to root out individual white-collar criminals. But it also imparts powers to those prosecutors that are unknown to their German counterparts. Among them is the power to threaten criminal indictment, one that allows prosecutors to force American corporations to cooperate, to waive the attorney-client privilege, and to cut ties to individual employees under investigation, thereby facilitating the prosecution of those individual defendants. Using differences in criminal procedure rather than criminal theory to explain the uniquely American doctrine, this Note concludes by suggesting how the criminal procedure approach can best be used to understand—and potentially to reform—an American system that critics increasingly decry as broken.