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Organizational Liability and the Tension Between Corporate and Criminal Law
No full textThis Essay, written as part of the 2010 Hon. David G. Trager Public Policy Symposium, recasts the corporate criminal liability problem as a tension between corporate and criminal law. On one hand, we would like to use criminal law to exact retribution from corporate entities, express our moral condemnation for the acts that have taken place within and through those entities, and to impose structural reforms that prevent future wrongdoing. Where publicly held corporations are concerned, however, it is difficult to do to impose entity-level criminal liability without also invoking responses from shareholders and innocent employees, who argue quite forcefully that they are not the proper repositories of blame. In response to this critique, some proponents have suggested that shareholders ought to play a greater role in managing the corporation and that criminal liability is valuable insofar as it spurs shareholders to exercise greater oversight over corporate managers. But this question – the role that shareholders ought to play in the management of the publicly held corporation – is not ordinarily the province of criminal law. Rather, it is the preoccupation of corporate law, whose doctrines purposely leave shareholders with relatively little power to run the corporation’s daily affairs. It may be that there is reason to alter this balance of power, but if so, the issue is more appropriately left to the architects of corporate, and not criminal, law
Arbitration\u27s Summer Soldiers Marching into Fall: Another Look at Eisenberg, Miller, and Sherwin\u27s Empirical Study of Arbitration Clauses in Consumer and Nonconsumer Contracts
Get PDFOur empirical study examines the role and importance of arbitration clauses in standard form contracts, primarily with other businesses. While much has been written about the impact of mandatory arbitration clauses in consumer contracts, relatively little has been written on mandatory arbitration clauses in customer agreements where the customer was a business and not an individual consumer. In this Article, we specifically address the findings presented in Theodore Eisenberg, Geoffrey Miller, and Emily Sherwin’s study, Arbitration’s Summer Soldiers: An Empirical Study of Arbitration Clauses in Consumer and Nonconsumer Contracts.1 Our study finds that many businesses employ mandatory arbitration clauses in their customer contracts with other businesses. Our study also suggests that the primary reason for mandatory arbitration clauses in customer contracts where the customer is a business is the avoidance of expenses associated with litigation. Our study may help companies to better understand attitudes about arbitration and assist in contract negotiations. The results of our study may also help courts determine whether arbitration clauses in merchant form agreements––and changes to those clauses––are “material” under section 2-207(2) of the Uniform Commercial Code
Addressing Problems of Power and Supervision in Field Placements
Get PDFPower dynamics play a role in all workplace relationships and are of particular significance in field placement programs where such dynamics can have an impact on the learning opportunities for law students. This article examines power issues in relation to supervision of law students. The article begins by exploring the parameters of the problem through examples, and then examines the potential consequences of failing to address such issues in field placement programs, including ethical ramifications. Faculty in field placement programs, who generally are not responsible for client work product, have a unique opportunity to address power and supervision issues with students and supervising attorneys. The goal of field placements is to equip students to fully exploit opportunities in the programs, and to prepare them for workplace issues they may face in the legal workplace. The article contains extensive suggestions for teaching about power in each phase of field placement programs, in hopes of enabling students, faculty and supervisors to identify and address problems of power and supervision and to maximize student learning
How California Got It Right: Mining In re Marriage Cases for the Seeds of a Viable Federal Challenge to Same-Sex Marriage Bans
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