The Culpable Corporate Mind

This collection examines critically, and with an eye to reform, conceptions and conditions of corporate blameworthiness in law. It draws on legal, moral, regulatory and psychological theory, as well as historical and comparative perspectives. These insights are applied across the spheres of civil, criminal and international law. The collection also has a deliberate focus on the ‘nuts and bolts’ of the law: the legal, equitable and statutory principles and rules that operate to establish corporate states of mind, on which responsibility as a matter of daily legal practice commonly depends. The collection therefore engages strongly with scholarly debates. The book also speaks, clearly and cogently, to the judges, regulators, legislators, law reform commissioners, barristers and practitioners who administer and, through their respective roles, incrementally influence the development of the law at the coalface of legal practice. Foreword by The Hon Justice Michelle Gordon AC Preface Contents List of Contributors Table of Cases Table of Legislation Table of Instruments and Other Materials (Australia) Australian State Legislation Table of Other National Legislation Table of International Materials PART I: FRAMEWORKS AND CONTEXTS 1. The Culpable Corporate Mind: Taxonomy and Synthesis I. Genesis II. Taxonomy and Synthesis III. Conclusion 2. Associations and Moral Responsibility: Some Ground-Clearing I. Introduction II. The Morality of Association III. Associations and Moral Responsibility for Actions IV. Associations and Moral Responsibility for Historic Harms V. Discharging the Moral Responsibility of Associations VI. Conclusion 3. Crown Resorts and the Im/moral Corporate Form I. Why is it Important to Establish the Corporation as a Moral Agent? II. Crown, Criminal Law and the Requirements of Moral Agency III. Conclusion 4. Corporate Torts in England: Limiting Liability by Capacity I. The Problem of Corporate Torts II. Why Limited Liability? III. Accommodating Tort within Asset-Partitioning Models IV. Ultra Vires as a Policing Device for Authorised Action V. The History of Ultra Vires VI. Controlling Limited Liability VII. Defining Corporate Capacity – The Role of Charters (Prerogative Delegation) and Statutes (Legislative Creation) VIII. Modern Cases on Ultra Vires IX. Scope of Authority and Ultra Vires X. A Revival of Corporate Purposes Doctrine? 5. The Corporate Culpability of Big Tech I. Big Tech's Small Liabilities II. Big Tech's Systems III. Opportunities for Further Work PART II: ATTRIBUTION MODELS 6. Meridian, Allocated Powers and Systems Intentionality Compared I. Three Models II. Comparing the Models III. Compatibility of the Models IV. Conclusion 7. Reactive Corporate Fault I. Reactive Corporate Fault Revisited – Overview II. The Concept of Reactive Corporate Fault III. Statutory Reform of Corporate Fault and Reactive Corporate Fault IV. Conclusion: Advantages of Proposed Statutory Adoption of Reactive Corporate Fault and Possible Concerns 8. Ideas of Corporate Culture from the Perspective of Penalties Jurisprudence I. Introduction II. The Corporate Culture Provisions III. A Framework for Analysis of Penalties Jurisprudence IV. Analysis of Australian Civil Penalties Jurisprudence V. Conclusion 9. Systems Intentionality: Theory and Practice I. Introduction II. Genesis and Features of Systems Intentionality III. Systems within the Spectrum of Behaviours IV. Proving Systems Intentionality V. Conclusion 10. How to Read a Corporation's Mind I. Discerning the Corporate Mind, From Where to How II. A Tradition of Looking for Corporate Mental States III. Systems Intentionality IV. Inferring Minds, Natural and Corporate V. Systems Intentionality at Sentencing PART III: CORPORATE STATES OF MIND 11. Modelling Corporate States of Mind through Systems Intentionality I. Introduction II. A Spectrum of Mental States and Related Norms of Conduct III. Systems Intentionality and Mental States IV. Conclusion 12. Automated Mistakes: Vitiated Consent and State of Mind Culpability in Algorithmic Contracting I. Introduction II. Algorithmic Contracts III. Plaintiff Mistakes and Defendant Culpability IV. Algorithmic Contracts and Plaintiff Mistakes V. Algorithmic Contracts and Systematic Wrongdoing VI. Conclusion 13. Can Corporations be Dishonest? I. Introduction: A Rock and a Hard Place II. Criminal Dishonesty: Lies, Damned Lies and Logistics III. Corporate Culture: Longitudes and Attitudes IV. Corporate Dishonesty: Neither Fish nor Foul V. Conclusion: Can Corporations be Honest? 14. Asset-Based Lending: A Case Study in Unconscionable Systems of Conduct I. Conscience and Corporations II. Asset-Based Lending and the Law III. Stubbings v Jams 2 Pty Ltd IV. The Survival of Equitable Unconscionability? V. Conclusion 15. Corporate Contrition I. Introduction II. Corporate Remorse and Contrition: A Challenging Concept III. Meaning of Remorse and Contrition IV. Functions of Remorse and Contrition V. Judging Remorse and Contrition VI. Corporate Contrition and Remorse VII. Corporate Remorse and Contrition: Future Directions VIII. Conclusions PART IV: ALTERNATIVE APPROACHES 16. Culpable Ships I. Introduction II. The Origin of Criminal Admiralty Jurisdiction III. Criminal Admiralty Jurisdiction in Australia IV. Modern Maritime Criminal Proceedings V. Why Criminalise Seafarers? VI. Corporate Attribution VII. Alternatives to Liability Based upon Corporate Attribution VIII. The Juristic Entities Compared – Corporations and Ships IX. Criminal Liability against a Ship X. Criminal Liability of Ships – To What End? 17. Culpable Executives I. Introduction II. Techniques for Executive Liability III. Two Recent Australian Proposals IV. Analysis V. Conclusion 18. 'Failure to Prevent' Offences: The Solution to Transnational Corporate Criminal Liability? I. Introduction II. 'Failure to Prevent' Offences III. An Unjustified Expansion of Omissions Liability IV. Is Criminalisation Warranted? V. Reflecting Culpability VI. Relationship to the Principal Offence VII. Extraterritoriality VIII. Conclusion 19. Performance-Based Consumer and Investor Protection: Corporate Responsibility without Blame I. Introduction II. The Future of Fraud is Automated III. Performance-Based Consumer and Investor Protection IV. Alternative Approaches to Remedy and Deter Corporate Harm V. The Design and Distribution Obligations and the Consumer Duty VI. Responsibility for Results 20. Regulatory Pluralism to Tackle Modern Slavery I. Introduction II. The Modern Slavery Act 2018 (Cth) III. The Current Regulatory Landscape IV. Modern Slavery and Systems Intentionality V. Conclusion Index "This collection examines critically, and with an eye to reform, conceptions and conditions of corporate blameworthiness in law. It draws on legal, moral, regulatory and psychological theory, as well as historical and comparative perspectives. These insights are applied across the spheres of civil, criminal, and international law. The collection also has a deliberate focus on the 'nuts and bolts' of the law: the legal, equitable and statutory principles and rules that operate to establish corporate states of mind, on which responsibility as a matter of daily legal practice commonly depends.The collection therefore engages strongly with scholarly debates. The book also speaks, clearly and cogently, to the judges, regulators, legislators, law reform commissioners, barristers and practitioners who administer and, through their respective roles, incrementally influence the development of the law at the coalface of legal practice"-- Provided by publisher