Law Commons^™

Faultless Guilt: Toward A Relationship Based View Of Criminal Liability, Amy Sepinwall

Amy J. Sepinwall

Corporate Piety And Impropriety: Hobby Lobby's Extension Of Rfra Rights To For-Profit Corporations, Amy Sepinwall

Amy J. Sepinwall

In Burwell v. Hobby Lobby, the Supreme Court held, for the first time, that the Religious Freedom Restoration Act (RFRA) applied to for-profit corporations and, on that basis, it allowed Hobby Lobby to omit otherwise mandated contraceptive coverage from its employee healthcare package. Critics argue that the Court’s novel expansion of corporate rights is fundamentally inconsistent with the basic principles of corporate law. In particular, they contend that the decision ignores the fact that the corporation, as an artificial entity, cannot exercise religion in its own right, and they decry the notion that the law might look through the corporate …

Privacy And Organizational Persons, Eric W. Orts, Amy Sepinwall

Amy J. Sepinwall

This Article responds to an argument made recently by Elizabeth Pollman that corporations should not be deemed to have “constitutional privacy rights” in “most circumstances.” Setting forth an alternative conception of organizational rights and examining different meanings of “privacy,” the Article contends that courts should tread more carefully and that it may often be sensible and recommended to allow corporations and other organizations to assert some constitutional “rights of privacy.” More specifically, the Article suggests that organizations may enjoy “primary” rights, which reside with the organizations in the first instance or “secondary” rights, which are asserted by an organization to …

Conscience And Complicity: Assessing Pleas For Religious Exemptions After Hobby Lobby, Amy Sepinwall

Amy J. Sepinwall

In the paradigmatic case of conscientious objection, the objector claims that his religion forbids him from actively participating in a wrong (e.g., by fighting in a war). In the religious challenges to the Affordable Care Act’s employer mandate, on the other hand, employers claim that their religious convictions forbid them from merely subsidizing insurance through which their employees might commit a wrong (e.g., by using contraception). The understanding of complicity underpinning these challenges is vastly more expansive than what standard legal doctrine or moral theory contemplates. Courts routinely reject claims of conscientious objection to taxes that fund military initiatives, or …

Crossing The Fault Line In Corporate Criminal Law, Amy Sepinwall

Amy J. Sepinwall

Why is it that so few bankers have been prosecuted and punished in the wake of the financial meltdown? Pundits are quick to point to inadequate funding for addressing financial crime or, more cynically, the revolving door between government regulatory agencies and Wall Street. But the ultimate answer may be at once more banal and more dispiriting, lying as it does at the very foundations of our criminal law.

The conception of responsibility underpinning much of our criminal law contemplates the individual in isolation from others. As a result, our criminal law has tremendous difficulty tracking culpability in organizational contexts. …

Responsible Shares And Shared Responsibility: In Defense Of Responsible Corporate Officer Liability, Amy Sepinwall

Amy J. Sepinwall

When a corporation commits a crime, whom may we hold criminally liable? One obvious set of defendants consists of the individuals who perpetrated the crime on the corporation’s behalf. But according to the responsible corporate officer (“RCO”) doctrine, the government may also prosecute and punish those corporate executives who, although perhaps lacking “consciousness of wrongdoing,” nonetheless have “a responsible share in the furtherance of the transaction which the statute outlaws.” In other words, under the RCO doctrine, a corporate executive can come to bear criminal responsibility for an offense of her corporation that she neither participated in nor culpably failed …

Responsibility, Repair And Redistribution In The Wake Of The Financial Crisis, Amy Sepinwall

Amy J. Sepinwall

The point of departure for this paper is a claim about widespread shared responsibility for the financial crisis and the bailout it necessitated. We are inclined to decry Wall Street’s villainy, all the while conveniently overlooking our own role in precipitating the crisis. But individuals, we now know, prefer to spend rather than save and, as a result, require the kind of financial alchemy that can transform one’s house into a virtual ATM, or one’s exceedingly modest savings into a fiscal cushion that can sustain a long, comfortable retirement. Risk, then, is the inevitable price of our preferences for leisure …

Righting Others' Wrongs: A Critical Analysis Of Clawback Suits In The Wake Of Madoff-Type Ponzi Schemes And Other Financial Frauds, Amy Sepinwall

Amy J. Sepinwall

In a typical Ponzi scheme, early investors earn “profits” not through any legitimate investment activity on the part of the Ponzi scheme operator; instead the operator simply transfers money that later investors deposit to the earlier investors who seek redemptions. As such, when the scheme goes bust, as it must, the Ponzi scheme operator will not have enough money to cover all of the investors’ deposits, let alone the earnings on those deposits that the investors thought they were owed. Should the scheme’s winners – i.e., those who withdrew more money than they deposited – be compelled to return their …

Citizens United And The Ineluctable Question Of Corporate Citizenship, Amy Sepinwall

Amy J. Sepinwall

As a result of the Supreme Court’s decision in Citizens United, corporations and individuals now enjoy the same rights to spend money on ads supporting or opposing candidates for office. Those concerned about the role of money in politics have much to decry about the decision. But the threat to democracy posed by allowing wealthy corporations to function as political speakers arises as well under a regime that allows wealthy individuals to do so. If we are not prepared to limit individuals’ expenditures on political speech, we will have to find a way to distinguish individuals’ and corporations’ free speech …

Guilty By Proxy: Expanding The Boundaries Of Responsibility In The Face Of Corporate Crime, Amy J. Sepinwall

Amy J. Sepinwall

The BP oil spill and financial crisis share in common more than just profound tragedy and massive clean-up costs. In both cases, governmental commissions have revealed widespread wrongdoing by individuals and the entities for which they work. The public has demanded justice, yet the law enforcement response in both cases has been underwhelming. In particular, no criminal indictments have been sought for any of the corporations responsible for the Macondo oil rig explosion or the Wall Street banks involved in the financial meltdown.

This governmental restraint reflects a deep-seated ambivalence about corporate criminal liability. Though scholars have been debating the …

Citizen Responsibility And The Reactive Attitudes, Amy Sepinwall

Amy J. Sepinwall

This paper takes seriously the notion that individuals may bear responsibility for the transgressions of their group even where they do not bear the hallmarks of individual culpability. More specifically, I contend that citizenship itself can ground responsibility for the crimes of one’s nation-state, and I advance this contention in the context of a discussion about Americans’ responsibility for abuses committed in the course of the war in Iraq.

Moreover, the kind of responsibility I have in mind is not simply the forward-looking variety, which is what many forms of civil liability and reparations programs contemplate; nor is it simply …

Failures To Punish: Command Responsibility In Domestic And International Law, Amy J. Sepinwall

Amy J. Sepinwall

Military spokespeople and upper echelon commanders routinely maintain that wartime atrocities are the acts of a few "bad apples." Yet, while disclaimers of responsibility from higher-ups in the chain of command often beg credulity, the law provides safe harbor for those holding command positions since it is frequently powerless to ensnare anyone but the atrocity's immediate perpetrators. This Article spans international and domestic law, and it addresses one of the doctrinal constraints on holding commanders criminally liable: the doctrine of command responsibility as it applies where commanders fail adequately to investigate or punish atrocities of their troops.

As a theoretical …