Corporate Criminal Minds

If they can commit the vast majority of crimes, corporations must have mental states. Lawmakers and scholars assume that factfinders need fundamentally different procedures for attributing mental states to corporations and individuals. But recent advances in cognitive science cast doubt on this assumption by revealing similarities in how people attribute mental states to groups and individuals.The standard doctrine — which attributes to corporations all and only the mental states of their employees — illustrates the difficulties of trying to find a wholly separate theory of corporate mens rea. At this stage in corporate history, the standard approach regularly leads to acquittals and convictions out of synch with any sensible notion of criminal justice. In some cases, corporations are acquitted even though it is clear some corporate malfeasance has occurred, as when responsibility is so scattered among an army of employees that no identifiable individual has done or thought anything objectionable. In other cases, the self-serving crimes of rogue employees may be attributed to otherwise upstanding corporate citizens, branding the whole organization criminal in the eyes of the law.This article draws on recent findings in cognitive science to develop a new, comprehensive approach to corporate mens rea. An elegant solution, and the one proposed by this article, would accept what people naturally do and build the requirements for mens rea around that understanding. Under this new approach, factfinders would be asked to treat corporate defendants much like natural person defendants. Rather than atomize corporations into individual employees, factfinders would view them holistically. Then, factfinders could do just what they do for natural people — in light of surrounding circumstances and other corporate acts, infer what mental state most likely accompanied the act at issue. Such a theory harmonizes with recent cognitive scientific findings on mental state and responsibility attribution, developments that corporate liability scholars have mostly ignored.