If corporations are so big and powerful, then why are there so many corporate crime laws? Doesn’t it make more sense that corporations would lobby to restrict enactment of such laws?
Maybe not, according to University of Michigan law professor Vikramaditya S. Khanna. In this interesting paper (download required), Professor Khanna argues that corporate executives may reasonably believe that consenting to enactment of corporate crime laws is the least risky course:
One of the fundamental puzzles of corporate crime legislation is how does so much of it get enacted given that it targets corporations that are considered some of the most powerful and effective (if not the most powerful and effective) lobbyists in the country. My analysis suggests that corporate crime legislation may grow because it is a preferred response for corporate interests when some congressional action is inevitable. Corporate criminal liability?s growth could then be explained by the following: Some degree of ?punishment? is necessary, as a political matter, to satisfy public desires during recessions when revelations of corporate wrongdoing are numerous, and corporate crime legislation achieves that while imposing lower costs on business interests relative to other measures that could be undertaken (e.g., increasing corporate civil liability or managerial criminal sanctions).
The normative implications depend on one?s priors about the world and on which political account(s) one finds persuasive. However, one thing appears clear regardless of the preferred political account(s): If we start with the notion that corporate wrongdoing is under-deterred, then we would want to argue for curtailing corporate criminal liability and increasing the focus on corporate civil liability and managerial liability. That raises serious questions about how we regulate this area.