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Denying Corporate Rights and Punishing Corporate Wrongs

Published online by Cambridge University Press:  30 November 2015

Amy J. Sepinwall
Amy J. Sepinwall*
Affiliation:
University of Pennsylvania
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Abstract:

Scholars addressing the moral status of corporations are motivated by a pair of conflicting anxieties: If corporations are not moral agents, we will be unable to blame them for their wrongs. But if corporations are moral agents, we will have to recognize corporate moral rights, and the legal rights that flow therefrom. In early and under-appreciated work, Tom Donaldson sought to allay both concerns at once: Corporations, he argued, are not moral persons, and so are not eligible for many of the rights that persons enjoy; but they are moral agents, and so ought to bear responsibility in many of the ways that persons do. This article offers a sympathetic critique of the Donaldsonian strategy. I argue that, as it has been elaborated, the strategy necessarily fails. Nonetheless the strategy embodies a worthy aim and so I seek to provide an alternative way to vindicate it.

Keywords

corporate personhoodcorporate moral responsibilitycorporate rightsmoral agencycorporate criminal liabilityTom Donaldson
Type
Articles
Information
Business Ethics Quarterly , Volume 25 , Issue 4 , October 2015 , pp. 517 - 534
Copyright
Copyright © Society for Business Ethics 2015 

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References

NOTES

1. Unless otherwise indicated in the article, I use “person” or “personhood” to refer to “moral person” or “moral personhood,” respectively. The question of whether corporations are legal persons is a matter of convention and, in U.S. law, one that was settled long ago, in Santa Clara County v. Southern Pacific Railroad Company, 118 U.S. 394, 397 (1886). But the question of whether the corporation is a moral person, and so eligible for the rights that all (adult) moral persons enjoy, has been the subject of vigorous debate, and receives much attention here.

2. Cf. Stephen Bainbridge, Citizens United and the Constitutional Rights of Corporations, Professorbainbridge.com (Jan. 18, 2011), http://www.professorbainbridge.com/professorbainbridgecom/2011/01/citizens-united-and-the- constitutional-rights-of-corporations.html (describing a publicity stunt in which a woman announced that, if corporations were persons for purposes of political rights, then they should have the right to marry human persons, and then announcing her quest for a corporate spouse).

3. See, e.g., Thomas Donaldson, Corporations & Morality 22 (1982). To be sure, moral personhood is necessary but not sufficient for the right to marry or vote; citizenship is also required for the latter, and having reached some level of maturity is required for both. Neither condition should detain us here, though, because corporations are citizens of the sociopolitical entity in which they are incorporated, and because no one, to my knowledge, thinks of corporations as immature (a claim that would seem to imply that corporations could become more mature than they are. Cf. Philip Pettit, Responsibility Incorporated, 117 Ethics 171, 176-77 (2007) (discussing a developmental conception of moral agency whereby we treat immature agents as if they were moral agents as a way of “responsibilizing” them)).

For evidence that individuals across the ideological spectrum oppose corporate voting rights, see Editorial, The Rights of Corporations, N.Y. Times, Sept. 22, 2009, at A30 (“corporations cannot and should not be allowed to vote.”); Pierre-Yves Néron and Wayne Norman, Citizenship, Inc.: Do We Really Want Businesses to Be Good Corporate Citizens?, 18 Bus. Ethics Q. 1, 8 (2006) (“Does it make sense to think of corporations in any of these ways? For example, as full and equal members of the state, with a right to vote, and to hold office? Presumably not: even the staunchest advocates of corporate citizenship do not propose going that far.”). Cf. Richard A. Epstein, Citizens United v. FEC: The Constitutional Right That Big Corporations Should Have but Do Not Want, 34 Harv. J.L. & Pub. Pol’y 639, 646 (2011) (“I certainly would not want to let corporations vote, given that individuals can set up multiple corporations at the drop of a hat.”).

4. Donaldson,supra note 3; Tom Donaldson, Moral Agency and Corporations, 10 Philosophy in Context 54 (1980).

5. Cf. Peter French, The Corporation As a Moral Person, 16 Am. Phil. Q. 207, 210 (1979) (“it is possession of the attributes of an administrator of rights … that are [sic] among the generally regarded conditions of moral personhood.”), Patricia H. Werhane, Persons, Rights, and Corporations 35 (1980) (“French suggests that a moral person might be a non-eliminatable subject of a right.”).

6. Cf. Roe v. Wade, 410 U.S. 113, 159 (1973) (“When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus [on what personhood consists of], the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.”).

7. See, e.g., Werhane,supra note 5 at 34 (“The analogy between corporations and persons under the law has raised the question of whether corporations are sufficiently like individual human beings that they can be considered to be moral … persons and thus have moral rights.”).

8. Donaldson,supra note 3 at 23.

9. See, e.g., Albert W. Alschuler, Two Ways to Think About the Punishment of Corporations, 46 Am. Crim. L. Rev. 1359 (2009); John Hasnas, Where Is Felix Cohen When We Need Him?: Transcendental Nonsense and the Moral Responsibility of Corporations, 19 Brook. J.L. & Pol’y 55 (2010); J. Angelo Corlett, Collective Punishment and Public Policy, 11.3 J. Bus. Ethics 207 (1992).

10. See, e.g., Daniel R. Fischel & Alan O. Sykes, Corporate Crime, 25 J. Legal Stud. 319, 323 (1996); V.S. Khanna, Corporate Criminal Liability: What Purpose Does It Serve?, 109 Harv. L. Rev. 1477, 1477–78 (1996).

11. This is not to say that corporate rights are incompatible with a reductionist view. But so-called corporate rights are fully reducible to the rights of individuals – they are assigned to the corporation because that assignment is necessary to protect the rights of the corporation’s individual members. See, e.g., Eric W. Orts and Amy J. Sepinwall, Privacy and Organizational Persons, 99 Minn. L. Rev. 2275, 2292-96 (2015) (describing “secondary corporate rights,” which are reducible in just this way).

12. Tom Donaldson, Moral Agency and Corporations, 10 Philosophy in Context 54 (1980). See also Donaldson,supra note 3 at 22-23.

13. See generally Carl J. Mayer, Personalizing the Impersonal: Corporations and the Bill of Rights, 4 Hastings L. J. 577, 666-667 (1990) (listing all of the rights corporations enjoy under the Constitution).

14. For one piece of evidence supporting the notion that the rights Donaldson cites are either natural rights or have counterparts in natural rights, see the U.N. Declaration of Human Rights, Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. Doc. A/810 at 71 (1948), especially Articles 18 (freedom of religion), 21 (right to vote) and 22 (social security). Cf. Louis Henkin, The Rights of Man Today (1978) (“Political forces have mooted the principal philosophical objections, bridging the chasm between natural and positive law by converting natural human rights into positive legal rights.”).

15. Werhane,supra note 5 at 40.

16. Manuel Velasquez offers an interesting variant of this concern. He worries that our elevated conception of the corporation (a mistaken conception, by his lights) will prompt us to sacrifice our own interests for the sake of the corporation’s, and he envisions a kind of corporate totalitarianism as a result. Manuel Velasquez, Why Corporations Are Not Responsible for Anything They Do, 2 Bus. & Prof’l Ethics J. 1, 15-16 (1983). Unlike Werhane (and Donaldson and French), however, Velasquez denies that corporations are moral agents. His argument about corporate supremacy is then intended to add a prudential reason to the metaphysical and conceptual reasons he already offers for rejecting corporate moral agency.

17. Patricia H. Werhane and R. Edward Freeman, Corporate Responsibility, in The Oxford Handbook of Practical Ethics 520 (2003). See also Werhane, Persons,supra note 5 at 40. Werhane first raises the concern about corporate supremacy in her critique of Peter French’s contention that corporations are moral persons. In her fullest articulation of her view, she ultimately argues in favor of corporate secondary rights—rights derivative of, and weaker than, the rights of individuals. See id. at 62 (“the rights of organizations are distinguished from individual rights because, being derived from them, they do not take precedence over, but rather should be secondary to, individual rights.”); id. at 60-64. But in a piece co-authored with Ed Freeman, supra, there is a return to the worry about corporations lording it over individuals if corporations are granted rights, and this worry appears to be advanced on its own merits, and not merely as a response to someone else’s proposal. Werhane and Freeman, supra, at 520.

18. See, e.g., Alexander Wendt, The State As a Person in International Theory, 30 Rev. Int’l Studies 289 (2004). Wenar, Analysis, supra note 29 at 253.

19. Cf. Christian List and Philip Pettit, Group Agency: The Possibility, Design and Status of Group Agents 180-81 (2011) (“The state is the most salient group agent of all, and from the days of classical Athens and the Roman republic, …. the need to contain its power has been widely recognized.”). But cf. Velasquez, supra note 16 at 15 (noting that we do sometimes think it appropriate for individuals to sacrifice their own welfare for the sake of the state’s).

20. In Ben Franklin’s words, “[i]n free governments, the rulers are the servants and the people their superiors and sovereigns.” Benjamin Franklin,The Political Thought of Benjamin Franklin 398 (Ralph Ketchum ed., 2003). The more general idea is that of popular sovereignty, wherein the people relinquish their power to the government only provisionally; they may withdraw their consent whenever the government threatens to exceed the power it has been granted. See, e.g., John Locke, Two Treatises of Government, Section 149 (Peter Laslett ed., 1988) (“For all Power given with trust for the attaining an end, being limited by that end, whenever that end is manifestly neglected, or opposed, the trust must necessarily be forfeited, and the Power devolve into the hands of those that gave it”) (italics in original); John Stuart Mill, On Liberty 1.3 (1869), available at http://www.econlib.org/library/Mill/mlLbty1.html.

21. Werhane and Freeman offer an additional argument for the claim that corporations are moral agents but not moral persons:

corporations exhibit intentional behavior, engage in reciprocal accountability relationships, are subjects of rights, and are said to act. But their so-called intentions, their accountability relationships, and their ‘actions’ are the collective result of decisions made by individual persons. Their rights are assigned to an artificial entity, not to any individual person. The corporation is an eliminable subject, because, without persons, corporate ‘actions’ literally could not occur. Thus corporations are moral agents but not moral persons.

Supra note 17 at 522. It is not altogether clear from this argument why the fact that corporations cannot act except through individual persons disqualifies corporations from moral personhood but not from moral agency. The distinction seems to relate to Werhane and Freeman’s subsequent remarks about collective moral agency. They note that an individual’s acts on behalf of the corporation, although blameless on their own, sometimes combine with other individuals’ acts, also blameless, to produce a wrong. Id. at 52-54. Thus “there could be questionable outcome of corporate decision making that is the result of a series of blameless individual actions.” Id. at 54. I take it that the worry here is that we will be left with a responsibility remainder, or “deficit,” List and Pettit, supra note 19 at 194, if we cannot hold the corporation morally responsible for the “questionable outcome.” But the worry, though compelling, cannot itself secure corporate moral agency. The fact that we might wish that the corporation were a moral agent will not make it so. Nor can we locate corporate moral agency in the fact that some corporate actions are not fully reducible to their individual inputs. This irreducibility suggests that there are actions best described as corporate actions. But even if it then makes sense to contend that the corporation can act, moral agency requires more than a capacity for action. For all these reasons, I fail to see why we should endorse Werhane and Freeman’s contention that the corporation is a moral agent but not a moral person.

22. List and Pettit, supra note 19 at 179-80.

23. Id. at 181.

24. John Rawls, A Theory of Justice (1971). See also Jane English, Justice Between Generations, 31 Phil. Stud. 91, 95 (1977) (identifying this feature of Rawls’s account and decrying it for “making the family opaque to claims of justice”); Susan Moller Okin, Gender, Justice and Gender: An Unfinished Debate, 72 Fordham L. Rev. 1537, 1547-54 (2004).

25. Cf. Okin, supra note 24 at 1547 (noting that, on Rawls’s account, each of the parties to the original position is to treat the family he represents as a “single entit[y].”).

26. List and Pettit, supra note 19 at 182.

27. Id. at 227 n. 128.

28. See, e.g., Immanuel Kant, Groundwork for the Metaphysics of Morals 53-54 (Allen Wood ed., 2002); Christine M.Korsgaard, The Sources of Normativity (1984).

29. The debate between will and interest theorists of rights had for a long time dominated rights theory, producing ever more sophisticated accounts on each side. Cf. Leif Wenar, The Analysis of Rights, in The Legacy of H.L.A. Hart: Legal, Political, and Moral Philosophy 254 (Matthew H. Kramer ed., 2008) (noting that the two positions are “deeply entrenched” and that the weaknesses of each are “by now well understood”). More recent interventions occupy a middle ground, advancing accounts that mix elements from both camps. See, e.g., Gopal Sreenivasan, A Hybrid Theory of Claim-Rights, 25 Oxford J. Legal Stud. 257 (2005); Rowan Cruft, Rights: Beyond Interest Theory and Will Theory?, 23 Law & Phil. 347 (2004).

30. See generally Joseph Raz, The Nature of Rights, 93 Mind 194 (1984); Joel Feinberg, The Rights of Animals and Unborn Generations, in Rights, Justice, and the Bounds of Liberty: Essays in Social Philosophy 159-84 (1980); Matthew H. Kramer, Refining the Interest Theory of Rights, 55 Amer. J. Juris. 31 (2010).

31. Joseph Raz, Morality As Freedom 166 (1986). The interests worthy of protection are interests in those “goods whose satisfaction is required for a recognizably human life, whatever a person’s particular plans, and distinctive conceptions of the good.”

32. See, e.g., Neil MacCormick, Children’s Rights: A Test-Case for Theories of Rights, 62 Archiv für Rechtsund Sozialphilosophie 311 (1976). Cf. Leif Wenar, The Nature of Rights 33 Phil. & Pub. Aff. 223, 240 (2005) (noting that few would deny that children have rights against being abused and that the presence of these rights speaks in favor of an interest, rather than a will, theory of rights).

33. Proponents of animal rights implicitly or explicitly rely on an interest theory of rights. See, e.g., Peter Singer, AnimalLiberation (1975); Tom Regan, The Case for Animal Rights (1983). Indeed, even non-sentient beings have been claimed by some to be appropriate holders of rights. See, e.g., Christopher D. Stone,Should Trees have Standing? And Other Essays on Law, Morals and the Environment (1996); Keith Graham,Practical Reasoning in a Social World: How We Act Together 89-91 (2002) (holding that groups can have rights of their own and denying that sentience is required for rights-bearing).

34. As Raz writes, “There is little that needs to be said here of the capacity of corporations and other ‘artificial’ persons to have rights. Whatever explains and accounts for the existence of such persons . . . also accounts for their capacity to have rights.” Raz,supra note 31 at 176.

35. But perhaps this moves too quickly. One might instead argue, pace Raz, that corporations do not in fact have interests of the kind contemplated by the interest theory—namely, interests we have reason to protect for the sake of the being whose interests they are. This is Joel Feinberg’s view of the kinds of interests necessary to ground moral rights. See The Rights of Animals and Future Generations, in Philosophy and Environmental Crisis 43 (William Blackstone ed., 1974). If Feinberg is right, and if the corporation’s interests are not for its own sake—if, say, they are derivative of the interests of (some of) its members and so we protect the corporation’s interests for the sake of the corporation’s members—then the corporation would not qualify for rights on an interest theory of rights.

Feinberg’s understanding of the kind of interests a rights-theory should contemplate has much to commend it. But notice that it too undermines the Donaldsonian Strategy: To be sure, it would establish that corporations do not warrant rights, which is the first half of the Donaldsonian position. But in so doing it would refute the second half, which seeks to establish that corporations are moral agents. For the features necessary to be the kind of being who has interests worthy of protection for the being’s own sake are also necessary for moral agency. These features, Feinberg maintains, include the possession of consciousness and conative states, as well as a natural teleology. Id. at 49. Feinberg concludes that beings without these capacities “have no interests. A fortiori, they have no interests to be protected through legal or moral rules.” Id. at 50. But so too, we may conclude, these beings would not be fit for moral agency, since moral agency requires at least that one be conscious. See, e.g., John Locke, Of Identity and Diversity, Chapter XXVII, pgphs 18-20, 28 of An Essay Concerning Human Understanding, available at http://www.gutenberg.org/cache/epub/10615/pg10615-images.html (noting that consciousness is a prerequisite for self-consciousness, and arguing that one can be blameworthy only if one owns one’s past acts as one’s own; in this sense, then, moral agency requires consciousness); Kenneth Einar Himma, Artificial Agency, Consciousness, and the Criteria for Moral Agency: What Properties Must an Artificial Agent Have to Be a Moral Agent? 11 Ethics and Information Technology 19 (2009) (“each of the various elements of the necessary conditions for moral agency presupposes consciousness”). Since corporations are not conscious, they would not qualify for moral agency on Feinberg’s account. As such, his view can be leveraged as the obverse way of showing the Donaldsonian Strategy to be untenable.

36. See, e.g., CarlWellman, Real Rights (1995); H.L.A. Hart, Essays on Bentham: Studies in Jurisprudence and Political Theory 162-93 (1982).

37. H.L.A. Hart, Are There Any Natural Rights?, 64 Phil. Studies 175, 188 (1955) (italics added). See also Wenar, Analysis, supra note ____ at 253 (“Only those beings that have certain capacities—the capacities to exercise choice in controlling their own actions and the duties of others—are potential will theory right-holders.”).

38. See, e.g., Marlies Galenkamp, Individualism and Collectivism: The Concept of Collective Rights (1993).

39. See, e.g., Ian Carter, Introduction, in Hillel Steiner and the Anatomy of Justice: Themes and Challenges xviii (Stephen De Wijze. et al., 2009) (“On the will theory…, rights-bearers are necessarily moral agents with a capacity for choice.”).

40. Hart, supra note 36 at 188. Elsewhere, Hart seeks to extend rights to individuals not capable of choice—e.g., children—by arguing that a rights-holder could have a representative who chooses on her behalf whether to enforce or waive the duty in question. Bentham on Legal Rights, in Oxford Essays in Jurisprudence, 2nd Series, 171–201, 184 n. 6 (A. W. Simpson ed., 1973). This extension would show only that the capacity for choice is not, in the end, necessary to hold rights on Hart’s account. It leaves intact his earlier claim that moral agency is sufficient for enjoying “general” rights.

41. I follow the articulations in Carter, supra note 39 and in Hart, supra note 36, which represent moral agency as distinct from a capacity for choice. But it is fair to say that one who qualifies for moral agency possesses the requisite capacity for choice. On a will theory, the right-holder has discretion over whether or not to exercise his right. He will make that choice in light of his considered judgment about what it makes most sense for him to do. Forming that judgment requires self-awareness, a capacity for practical reason (i.e., capacities for belief and desire, an ability to form plans or goals, to evaluate and so rank order these, etc.), and an ability to conform his acts to his considered judgment. All of these (and more) are required for moral agency. So the individual who is a moral agent can choose in the way the will theory contemplates.

42. I note that some theorists offer accounts of corporate moral responsibility that do not require the capacities that the will theory contemplates. For example, Larry May argues that a corporation may be held morally responsible for a wrong of its employee on a theory of vicarious liability, where the corporation is at fault in virtue of the failure of other employees to fulfill their duty to put in place mechanisms that would have prevented the employee’s wrong. Larry May, Vicarious Agency and Corporate Responsibility, 43 Phil. Studies 69 (1983). The corporation has something to do with the employee’s wrong since it is the corporation’s organizing structure that creates a blameworthy causal link between the wrongdoing employee and the other employees who were charged with preventing wrongs of the kind the employee committed. At the same time, May denies that the corporation is either a full-fledged moral agent or a full-fledged moral person. As he says, “Gulf Oil Co. does act in some sense of that term, but its acts are vicarious ones, and its personhood is thus greatly restricted. But . . . this agency is not restricted to such an extent that moral appraisal of this action is ruled out. There are actions of the corporation which can be morally blameworthy even though the corporation’s agency status is much more restricted than full-fledged moral agents.” Id. at 74. What May’s account furnishes, then, is a theory that justifies our ascribing the employee’s act to the corporation. This is an important advance, for it allows us to conceive of wrongs as corporate wrongs not only where the corporation authorized them but also where it negligently failed to prevent them. But nothing in the account aims to establish that corporations are either fit to be blamed or eligible for rights.

43. Elsewhere, I argue that we have good reason to doubt that corporations are moral persons or moral agents. Amy Sepinwall, Monsters, Incorporated (2014) (unpublished manuscript) (on file with author). I nonetheless stand by the arguments in this Part, which cast questions about the corporation’s moral status as red herrings.

44. See, e.g., David E. Cooper, Hegel’s Theory of Punishment, in Hegel’s Political Philosophy 151, 153 (Z.A. Pelczynski ed., 1971).

45. See, e.g., Citizens United v. Federal Election Commission, 558 U.S. 310 (2010) (holding that corporations have the same rights as individuals to spend money on independent political speech); Burwell v. Hobby Lobby, 573 U.S. ____ (2014) (holding that closely-held for-profit corporations can claim rights under the Religious Freedom and Restoration Act and thereby secure exemptions from generally applicable legal requirements that substantially burden the corporation’s religious exercise).

46. See, e.g., Kiobel v. Royal Dutch Petroleum, 133 S.Ct. 1659 (2013) (holding that the Alien Tort Statute does not apply extra-territorially, so Shell could not be sued under it for its alleged complicity in human rights abuses); Mohamad v. Palestinian Authority, 132 S.Ct. 1702 (2012) (holding that the term “individual” in the Torture Victim Protection Act contemplates only natural persons and therefore does not impose liability on organizations). Cf. Chris Arnold, After Five Years, Why So Few Charges in Financial Crisis?, NPR.org, July 26, 2013, 4:55 PM EST, http://www.npr.org/2013/07/26/205866019/few-on-wall-street-have-been-prosecuted-for-financial-crisis (describing dissatisfaction with DOJ response to financial crisis given that so few individuals and firms have been prosecuted for the meltdown).

47. Others have questioned the fruitfulness of an inquiry into personhood for purposes of determining the corporation’s rights or responsibilities. See, e.g., William S. Laufer and Steven D. Walt, Why Personhood Does Not Matter: Corporate Criminal Liability and Sanctions, Amer. J. Crim. L. 263 (1991); Tom L. Beauchamp, The Failure of Theories of Personhood, 9 Kenn. Instit. Ethics 309 (1999) (arguing that satisfaction of the criteria necessary for metaphysical or moral personhood is neither necessary nor sufficient for being a rights-holder). But they have staked a far more modest position than the one I defend here: These other theorists maintain that we must first ascertain that the corporation possesses some set of features before recognizing it as an entity that can enjoy rights or bear responsibility, but they deny that these features need be necessary or sufficient for personhood. In other words, for these theorists, the question of whether the corporation is or is not a person is a red herring. Importantly, however, these theorists remain committed to the notion that the corporation’s metaphysical or ontological or moral status is decisive.

In contrast with these other theorists, a central claim of this article is that the corporation’s metaphysical or ontological or moral status is not in fact dispositive when it comes to determining whether the corporation may bear the rights and the kind of responsibility that vex us the most—in particular, free speech rights, rights of conscience, and the moral responsibility that underpins criminal liability.

48. I focus mostly on legal rights and legal cases here. One might then think that there is some slippage since, until this point, the focus has been on moral rights and moral personhood. In response, I note that the rights in question, as well as the legal subject’s liability to state punishment, are taken to emanate from his or her moral status. For example, rights to free speech and conscience arise because they are integral components of pre-legal rights to individual autonomy and self-determination that each of us enjoy in virtue of our moral status. See, e.g., Michael J. Perry, Freedom of Expression: An Essay on Theory and Doctrine, 78 Nw. U. L. Rev. 1137, 1142–43 (1984) (identifying, among our conceptions of the rationale for a right to free speech, an individualistic view focused on self-realization). Further, the emphasis on law arises simply because jurists have had more occasions to record their thinking about corporate rights. Finally, the lessons I draw from the cases represent principles that should guide our thinking about both the moral and legal rights of corporations.

49. An early case addressing the rights of corporations is instructive here: In Cnty. of Santa Clara v. S. Pac. R.R. Co., 18 F. 385 (D. Cal. 1883), aff’d sub nom Santa Clara County v. Southern Pacific R. Co.,118 U.S. 394 (1886), a lower court proclaimed that a corporation was nothing other than an association of individuals, who

do not, because of such association, lose their rights to protection, and equality of protection…. So, therefore, whenever a provision of the constitution or of a law guaranties to persons protection in their property, or affords to them the means for its protection, or prohibits injurious legislation affecting it, the benefits of the provision or law are extended to corporations; not to the name under which different persons are united, but to the individuals composing the union.

Id. at 402-403. In effect, then, the rights that the court found the corporation to enjoy were none other than those of the individuals who composed the corporation.

50. Cf. Orts and Sepinwall, supra note 11.

51. NAACP v. Alabama, 357 U.S. 449 (1958).

52. Burwell v. Hobby Lobby, 573 U.S. ____ (2014).

53. Amy J. Sepinwall, Citizens United and the Ineluctable Question of Corporate Citizenship, 44 Conn. L. Rev. 575 (2012).

54. See, e.g., Molly Redden, Hobby Lobby’s Hypocrisy: The Company’s Retirement Plan Invests in Contraception Manufacturers, Mother Jones (Apr. 1, 2014, 6:00 AM), http://www.motherjones.com/politics/2014/04/hobby-lobby-retirement-plan-invested-emergency-contraception-and-abortion-drug-makers (accusing Hobby Lobby of hypocrisy and noting the availability of faith-based investing plans that screen for companies manufacturing abortion drugs).

55. The famous (or, perhaps more accurately, infamous) legal example is United States v. Bank of New England, 821 F.2d 844, 856 (1st Cir. 1987), which held that a bank could be said to know that withdrawals had exceeded the level triggering a reporting requirement when tellers knew the amount of the withdrawals but did not know the reporting threshold, and other bank employees knew the reporting threshold but did not know the amount of the withdrawals.

List and Pettit offer convincing examples of a similar phenomenon in their discussion of discursive dilemmas, in which a group agent arrives at a decision to commit a wrong through an aggregating decision procedure where it is possible that none of the group’s individual members would have voted in favor of the wrong. List and Pettit, supra note 19 at 194.

56. See, e.g., James Dempsey, Corporations and Non-Agential Moral Responsibility, 30 J. Applied Phil. 334 (2013); List and Pettit, supra note 19 at 194 (calling this remainder a “responsibility deficit”); Amy J. Sepinwall, Guilty by Proxy: Expanding the Boundaries of Responsibility in the Face of Corporate Crime, 63 Hastings Law Journal 101 (2012).

57. I argue at length for the claim that membership can make one blameworthy for a crime of one’s corporation independent of one’s participation in that crime in Sepinwall, Guilty, supra note 56; Amy J. Sepinwall, Faultless Guilt: Toward a Relationship-Based Account of Criminal Liability (2015) (unpublished manuscript) (on file with author). Cf. Amy J. Sepinwall, Citizen Responsibility and the Reactive Attitudes: Blaming Americans for War Crimes in Iraq, in Accountability for Collective Wrongdoing 231 (Richard Vernon and Tracy Isaacs eds., 2011) (arguing that citizens share blame for war crimes of their nation-state even if they opposed the war).

58. See Sepinwall, Guilty, supra note 56.

59. Jayne W. Barnard, Reintegrative Shaming in Corporate Sentencing, 72 S. Cal. L. Rev. 959, 963-64 (1999).

60. This suggestion, along with the suggestion below about shared responsibility, see infra note 63 and accompanying text, would be anathema to the theorist who harbors an individualist conception of responsibility, according to which one may be held morally (and so criminally) responsible only for wrongs to which one has culpably contributed. See, e.g., Velasquez, supra note 16 at 12-13; John Hasnas, The Centenary of a Mistake: One Hundred Years of Corporate Criminal Liability, 46 Am. Crim. L. Rev. 1329 (2009). I believe that the individualist position these authors stake is untenable when it comes to the acts of institutional groups for reasons I articulate elsewhere. See, e.g., Amy J. Sepinwall, Crossing the Fault Line in Corporate Criminal Law, 40 J. Corp. L. 439, 447-49 (2015).

61. See, e.g., Elizabeth K. Ainslie, Indicting Corporations Revisited: Lessons of the Arthur Andersen Prosecution, 43 Am. Crim. L. Rev. 107 (2006).

62. John Hasnas argues as much in Why Don’t Corporations Have the Right To Vote? (2014) (unpublished manuscript) (on file with author).

63. For a preliminary foray in this direction, see Orts and Sepinwall, supra note 11.