Politics and the Origins of Corporate Criminal Liability

• In Event: Punishing Corporate Crime

Abstract

Conventional explanations of the emergence of corporate criminal liability in the early 20th century typically emphasize the role courts played in its development. Focusing on the Supreme Court’s decision in New York Central and Hudson River Railroad Co. v. US (1909), legal historians often conclude that the articulation of corporate criminal liability by the Court should be seen as an organic development in line with previous common law precedents. This paper interrogates this narrative by exploring the political circumstances that helped to facilitate the rise of corporate criminal liability. To do so, I examine the Interstate Commerce Act of 1887, the Elkins Act of 1903, and the Annual Reports of the Interstate Commerce Commission. These analyses not only demonstrate that railroads were politically mobilized by the late 19th century, but that they also exerted pressure on the ICC and Congress to codify rules of corporate criminal liability in the Elkins Act. This upends traditional accounts that describe the doctrine as a wholly common-law driven development and raises questions about whether the political intervention of railroads prevented the Court from adequately considering alternatives to imputing criminal liability to corporations.

Author

• Anthony J. Grasso, University of Pennsylvania