ABSTRACT
To hold corporations liable for most significant harms, the law needs some mechanism for attributing mental states like purpose and knowledge. These mental states serve as proxies for fault that help to distinguish, for example, an unavoidable death from criminal homicide. The policy puzzle is to say where corporate mental states reside.
Current law typically reduces corporate cognition to the mental lives of individual employees. Most commentators agree that this approach is too limited because it overlooks emergent psychological phenomena – like cultural dispositions and collective knowledge – that arise from interactions between multiple employees. Some theorists would expand current law to allow that corporate mental states could inhere in stable corporate systems and policies as well.
This chapter argues that even this systems approach is too limiting. Rather than asking where corporate mental states reside, this chapter asks what should count as evidence from which corporate mental states could be inferred. The chapter proposes that this evidence should include any corporate behavior, whatever its causal source: an individual employee, a corporate system, or something else entirely. Such an approach would mirror how people ordinarily attribute mental states to groups like corporations. As such, it is better able to track the notions of corporate fault that are criminal law’s real interest.
Diamantis, Mihailis, How To Read a Corporation’s Mind (December 15, 2021).
First posted 2022-07-23 10:45:56
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