Abstract
Many criminal law scholars have criticized the responsible corporate officer doctrine as a form of strict and vicarious liability. It is neither. It is merely a doctrine that supplies a duty in instances of omissions. Siding with Todd Aagaard in this debate, I argue that a proper reading of the cases yields that the responsible corporate officer doctrine is just duty supplying, and does not allow for strict liability when the underlying statute requires mens rea. After analyzing Dotterweich, Park, and their progeny, I probe the depths of this duty-supplying doctrine, including to whom the duty is owed, whether the duty is grounded in statute, cause of peril, or contract, and what the content of the duty is. Although the responsible corporate officer doctrine unveils questions we may have about duty generally, it is no more problematic than other duty-supplying doctrines in the criminal law.
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Notes
Todd S. Aagard, “A Fresh Look at the Responsible Relation Doctrine,” 96 Journal of Criminal Law and Criminology 1245 (2006).
Id. at 1284.
Samuel W. Buell, “The Responsibility Gap in Corporate Crime,” (this issue).
320 U.S. 277 (1943).
Id. at 281.
U.S. v. Park, 421 U.S. 658 (1975).
Id. at 671.
Id.
Id. at 672.
Id. at 674.
Id. at 658.
Id. at 674.
Id. at 679.
Yes, there is an equivocation here on the notion of responsibility, but Justice Stewart’s worry is that the Court needed to give these concepts content for the jury.
Id. at 658 (Stewart, J. dissenting).
Id.
The affirmative defense of impossibility, which once raised must, according to Park, be disproven beyond a reasonable doubt is akin to the requirement that a defendant have the ability to perform an act. Cf. Model Penal Code § 2.01 (defendant must be physically capable of performing the omission).
U.S. v. Ballistrea, 101 F.3d 827, 836 (2d Cir. 1996).
Id.
Id.
488 F. Supp. 230, 234 (D. Mass. 1980).
U.S. v. Starr, 535 F.2d 512, 514 (9th Cir. 1976).
Celetano v. Rocque, 923 A.2d 709 (Conn. 2007).
370 U.S. 405 (1961).
U.S. v. Hodges, 759 F.2d 557 (6th Cir. 1985).
U.S. v. Poulin, 926 F. Supp. 246 (D. Mass. 1996).
People v. Matthew, 7 Cal App. 4th 1052, 1062 (Cal. Ct. App. 1992).
BEC Corp v. Department of Environmental Protection, 775 A.2d 928 (Conn. 2001).
33 U.S.C.A. § 1319(c)(6) (Clean Water Act).
Wittenberg v. Gallagher, 2001 WL 34048121 (Ariz. Ct. App. 2001).
People v. Byre, 128 Misc.2d 448 (N.Y. Ct. App. 1985).
State v. Markowitz, 273 A.D.2d 637 (N.Y. Ct. App. 2000).
Kaites v. Pennsylvania Department of Environmental Resources, 529 A.2d 1148 (Pa. Cmwlth. Ct. 1987).
Aagaard, supra note 1, at 1247.
U.S. v. MacDonald & Watson Waste Oil Co, et al., 933 F2d 35, 51-52 (1st Cir. 1991).
Facchiano Construction, Co., Inc. v. U.S. Dept. of Labor, 987 F.2d 206, 214 (3d Cir. 1994).
See, e.g., U.S. v. Iverson, 162 F.3d 1015 (9th Cir. 1998); U.S. v. Cattle King Packing Co., Inc. 793 F.2d 232, 241 (10 Cir. 1986). Notably, there is dicta in a different Tenth Circuit case under the Clean Water Act, wherein the court suggests that the responsible corporate officer doctrine imputes the willfulness or negligence required under the statute. See U.S. v. Brittain, 931 F.2d 1413 (10th Cir. 1991); see also Aagaard, supra note 1 (considering the discussion to be “some regrettable dicta”).
E.g., Michael E. Clark, “The Responsible Corporate Officer Doctrine,” 14 Journal of Health Care Compliance 5, 5 (2011). (“The ‘Responsible Corporate Officer doctrine’ (RCO doctrine) is a procedural contrivance that regulators and prosecutors have rediscovered and now are applying aggressively against businessmen in administrative, civil, criminal actions. The RCO doctrine has been aptly described as the ‘crime of doing nothing’ because it largely focuses upon a person’s position in an entity as the basis for imposing liability and not whether he or she had a culpable intent, was aware of any wrongdoing, or had any direct involvement whatsoever.”).
See also Kathleen F. Brickey, “The Rhetoric of Environmental Crime: Culpability, Discretion, and Structural Reform,” 4 Iowa Law Review 115, 125 (1998).
Hustis and Gotanda find that, within the context of environmental crimes, courts are requiring mens rea, and the fact that the defendant is a responsible corporate officer serves only as circumstantial proof of knowledge. Brenda S. Hustis and John Y. Gotanda, “The Responsible Corporate Officer: Designated Felon or Legal Fiction?,” 25 Loyola Univ. Chicago Law Journal 171 (1994).
See, e.g., U.S. v. White, 766 F. Supp. 873, 895 (E.D. Wash. 1991) (“The ‘responsible corporate officer’ doctrine would allow a conviction without showing the requisite intent.”).
Of course, there is the separate question of when statutes are formally strict (no mens rea required) versus substantively strict (commission of the crime is not morally blameworthy). See generally Kenneth W. Simons, “When is Strict Liability Just?” 87 Journal of Criminal Law and Criminology 1075 (1997). Purposefully smiling at someone is an example of the latter.
Sanford H. Kadish, “Some Observations on the Use of Criminal Sanctions in Enforcing Economic Regulations,” 30 University of Chicago Law Review 423 (1963) (citing Glanville Williams).
Andrew C. Baird, “The New Park Doctrine: Missing the Mark,” 91 North Carolina Law Review 949, 990 (2013).
144 F.3d 550 (8th Cir. 1998).
Id. at 560.
Cf. Douglas Husak, “Courses of Conduct,” in Dana K. Nelkin and Samuel C. Rickless (eds.), The Ethics and Law of Omissions (forthcoming, Oxford University Press, manuscript on file with author).
Restatement (Third) of Torts: General Principles (1999) § 12.
See Larry Alexander, “The Means Principle,” in Kimberly Kessler Ferzan and Stephen J. Morse (eds.), Legal, Moral, and Metaphysical Truths: The Philosophy of Michael S. Moore 251 (2016); Kimberly Kessler Ferzan, “Omissions, Acts, and the Duty to Rescue,” in Dana K. Nelkin and Samuel C. Rickless (eds.), The Ethics and Law of Omissions (forthcoming, Oxford University Press, manuscript on file with author).
Larry Alexander and Kimberly Kessler Ferzan, Reflections on Crime and Culpability: Problems and Puzzles, ch. 2 (forthcoming, Cambridge University Press, manuscript on file with author).
Granted, a tremendous amount hangs on whether the public is truly the third party beneficiary of the defendant’s contract with the corporation. As Martin Petrin details, courts struggle to determine when individuals can be held accountable in tort for the failure to supervise or manage an employee. Martin Petrin, “The Curious Case of Directors’ and Officers’ Liability for Supervision and Management: Exploring the Intersection of Corporate and Tort Law,” 59 American University Law Review 1661 (2010).
Larry Alexander, “Criminal Liability for Omissions: An Inventory of Issues,” in Stephen Shute and Andrew Simester (eds.), Criminal Law Theory: Doctrines of the General Part 121 (2002).
Alexander did not dub her “Negligent” nor would he, given his views about the reasonable person test. But it suffices for our purposes.
Alexander, supra note 52, at 138.
Id.
Heidi M. Hurd, “Promises Schmomises,” 36 Law and Philosophy 279 (2017).
Cf. Heidi M. Hurd, “The Moral Magic of Consent,” 2 Legal Theory 121 (1996).
Joseph Raz, “Is There a Reason to Keep a Promise?” in Gregory Klass, George Letsas, and Prince Sepai (eds.), Philosophical Foundations of Contract Law (2015).
Alexander, supra note 52. We try our hand at some of these puzzles in Reflections on Crime and Culpability, supra note 50.
In re Caremark International Inc. Derivative Litigation, 698 A.2d 959 (Del. Ch. 1996).
Accord Martin Petrin, “Circumscribing the ‘Prosecutor’s Ticket to Tag the Elite’—A Critique of the Responsible Corporate Officer Doctrine,” 84 Temple Law Review 283, 305 (2012). Petrin notes that these doctrines may work at cross purposes.
This is how the Supreme Court has more recently read the case. See Meyer v. Holley, 537 U.S. ___ (2003) (noting “[t]his Court has applied unusually strict rules only where Congress has specified that such was its intent”). The Court held the corporation was vicariously liable for the discrimination by the realtor but the corporate officer was not.
I don’t have a dog. Let’s be clear about that, IRS.
Aagaard, supra note 1, at 1278, 1282.
I thank Gregg Strauss for suggesting this to me.
Melvin Aron Eisenberg, “Third Party Beneficiaries,” 92 Columbia Law Review 1358 (1992).
Park at 658.
Id. at 674.
Id. at 679; see also U.S. v. Decoster, 828 F.3d 626 (8th Cir. 2016) (Gruender, J. concurring).
For those clever time framers out there, if you worry that Carla still acts at t1 by setting up the robot, then imagine Alice sets it up and then leaves so Carla’s only job is to push the DNI button.
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Harrison Robertson Professor of Law, Caddell and Chapman Professor of Law, University of Virginia Law School. For helpful discussion, I thank Ken Abraham, Darryl Brown, Brandon Garrett, John Harrison, Debbie Hellman, Leslie Kendrick, as well as the participants at the Georgetown Institute for the Study of Markets and Ethics symposium. Special thanks to Sam Buell and Gregg Strauss for batting around ideas with me. I thank Isabel Tuz, my research assistant, as well as the Virginia reference librarians, for invaluable research assistance.
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Ferzan, K.K. Probing the Depths of the Responsible Corporate Officer’s Duty. Criminal Law, Philosophy 12, 455–469 (2018). https://doi.org/10.1007/s11572-017-9429-6
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DOI: https://doi.org/10.1007/s11572-017-9429-6