On February 5, 2010, only a couple of weeks after the Supreme Court expanded a corporation’s First Amendment rights, sparking a public debate about corporate rights, Brooklyn Law School held the annual David G. Trager Public Policy Symposium, “Sharing the Blame: The Law and Morality of Punishing Collective Entities.” Co-sponsored by the Center for the Study of Law, Language and Cognition and the Journal of Law and Policy, the symposium was organized by Brooklyn Law School Professors Michael T. Cahill and Miriam H. Baer.
The timing of the symposium may have been particularly fortuitous, but it also highlighted the growing importance of determining what role corporations play in society. As a rash of high-profile corporate scandals – from AIG to Enron – have raised public outrage, thorny questions about blame and punishment have emerged: Should we impose punishment on these collective entities, and if so, what kind? How do we even conceive of a group as having its own independent existence apart from its members? Seeking to explore these questions, the symposium brought together a diverse panel of psychologists, philosophers, and lawyers to discuss the moral responsibility of groups and the possible implications for the scope of criminal law.
The first panel, moderated by Don Forchelli Professor of Law and Associate Dean for Academic Affairs Lawrence Solan, looked at “The Psychology of Group Identity” and some of the mental processes involved in forming our perceptions of collective entities. A group’s level of “entitativity” – a tongue twister of a psychological term for how others view the apparent unity of a group – influences whether such a group will be held responsible for its behavior. With corporations, people tend to look for “rotten apples, not rotten trees,” said panelist Tom Tyler, Chair of Psychology at New York University. In other words, it’s much easier to ascribe blame to a person than a group.
The second panel took the philosophical approach, examining “The Morality of Imposing Collective Responsibility.” Philosophers tend to agree that punishment should be meted out to agents who knowingly and self-consciously cause harm. But since corporations have neither consciousness nor moral agency, punishing their actions can create both practical and ethical dilemmas, even though they act with intent. The panelists then offered various solutions to punishing corporate malfeasance, from doing nothing to eradicating the group entirely.
The third panel, a roundtable discussion on “Corporate Criminal Liability and the Problem of Multiple Groups,” led to a conversation about the possible legal responses to corporate criminal behavior. Moderated by Brooklyn Law School Professor Miriam Baer, the panelists discussed and debated the value of using outside monitors to keep corporations in line, considering the effects having these monitors in place might have on subsequent corporate liability for wrongdoing.
The daylong symposium ended with a lively question-and-answer period with the audience. One listener asked whether we might even broaden the scope of the discussion to look at our profit-driven corporate culture, which would seem to encourage bad behavior. “Maybe it’s not just a matter of bad apples and bad trees,” he mused, “but of bad orchards.”
Papers from the symposium will appear in a future issue of the Journal of Law and Policy.
By Stephanie Staal ’10
View the video from this event.