Publications
Corporate Boards on Probation: Repurposing Stakeholder Governance into Criminal Punishment
60 Georgia Law Review (forthcoming 2026)
Stakeholder theory has long promised a more responsible corporate purpose, yet it consistently fails to produce meaningful corporate law reform. Despite mounting concerns about shareholder primacy, stakeholder governance still struggles to settle basic questions: Who counts as a stakeholder? How should their interests be weighed? Would stakeholderism even be legal in today's corporate law? And what would be the costs of leaving shareholder primacy behind? Lacking answers, stakeholderism perennially fails to convert popular critique into durable reform.
This Article proposes a new path towards stakeholder governance: not by revising corporate law, but rather by building stakeholder-friendly sentencing into corporate criminal law. When a firm's excessive pursuit of shareholder value contributes to serious criminal misconduct—endangering its workers, deceiving consumers, or harming communities—federal courts should leverage their considerable sentencing authority to empower injured stakeholders in fighting back. The core proposal, punitive codetermination, would require a convicted corporation to appoint stakeholder directors to its board for a term of probation, giving voice to those harmed and creating incentives for reform from within. Stakeholder-friendly sentencing leverages insights from stakeholder governance, mediated by distinct institutional prerogatives of criminal law, to reach what is ultimately a more tractable, cohesive policy than stakeholder governance offers on its own. Its authority draws from existing sentencing powers, aligns with current trends in corporate criminal enforcement, and avoids stakeholderism's policy paralysis by tying stakeholder empowerment directly to a corporation's criminal misconduct. In doing so, stakeholder-friendly sentencing reframes stakeholder governance—not as a replacement for shareholder primacy writ large, but instead as a fitting response to shareholder primacy run amok.
Sanctioning Negligent Bankers
78 Stanford Law Review 607 (2026)
Over just one week in 2023, depositor runs at a few U.S. banks threatened to trigger a worldwide banking crisis. Afterwards, the United States suffered three of the biggest bank failures in the nation’s history; in Europe, Credit Suisse became the largest financial institution to fail since the 2007-2008 Global Financial Crisis. Stunned by this lightning-fast panic, lawmakers, regulators, and academics have called for significant changes to the U.S. financial regulatory framework. Leading among these proposals are calls to improve supervisory oversight of banks, to tighten existing regulations on banks, and to increase deposit insurance limits. But these proposals alone are insufficient to stop the next wave of bank collapses, and they might even exacerbate a central problem contributing to bank runs: the bankers themselves.
Combining insights from banking regulation, corporate enforcement, and insurance law, this Article argues that proposed banking reforms should be paired with a credible sanctions regime imposed upon negligent bankers. Our approach would push oversight duties back into the C-suite through a civil penalty designed to disgorge compensation from a bank executive whose negligence substantially increases the risk of a bank collapse. We defend the theoretical basis for such an approach, including why a civil penalty, rather than criminal punishment, is the best solution to this problem; identify key features of our proposed liability regime, distinguishing it from previous proposals to hold bankers accountable; and then identify and evaluate preliminary implementation considerations for Congress and regulators.
Crypto Kleptocracy
121 Michigan Law Review Online 84 (2026)
Many Americans are worrying about whether they will soon be living in a post-democracy autocracy. But in the meantime, they may already be living in a crypto-fueled kleptocracy. Less than one year into his second presidential term, Donald Trump has reportedly taken his wealth to new heights by embracing, both as a businessman and a politician, the crypto industry. Trump’s family businesses are involved in minting Trump-themed meme coins, creating America-themed stablecoins, and mining crypto assets—so successfully that most of Trump’s wealth is likely now from crypto, not real estate. All the while, the Trump Administration is rolling back crypto regulations, abandoning ongoing crypto prosecutions, and pardoning crypto criminals.
But this Essay is ultimately not about Trump. Crypto creates new channels for public corruption that operate on autopilot, generating wealth without transactions, contracts, or promises for the law to easily pin down, prevent, or punish. Future politicians looking to convert public trust into private fortune need only follow this new playbook: Adoption is cheap, monitoring is hard, and payouts can be tremendous. President Trump’s second term makes vivid the potential for abuse, but the dangers won’t end there. If the United States fails to adapt, we risk entrenching a twenty-first-century kleptocracy in which the boundary between political power and personal enrichment is no longer blurred—it is erased.
Does the State Have an Obligation Not to Enforce the Law?
101 Washington University Law Review 1883 (2025)
Does the State have any obligation not to enforce its own law? Scholars have long debated whether and to what extent we—that is, us as citizens of the State—have an obligation to obey the law. Frequently taken for granted, however, is an assumption that the State generally has a corresponding duty to enforce the law. Now, to be sure, plenty of attention has been paid to special circumstances where the State ostensibly has discretion, maybe even an obligation, either not to enforce specific laws or not to enforce the law in specific ways. But, for purposes of discussion, put aside the practical resource constraints. Put aside laws that are obviously unjust or unjustly applied. Even still, is there any remaining obligation on the State not to enforce the law? And if so, what might be the scope and content of such an obligation?
This Essay sketches several reasons to think there exists a freestanding, defeasible obligation on the State not to enforce its own law. The modest ambition here is only to establish some outer limit on the State’s obligation to enforce the law. Whatever this duty of non-enforcement requires, it should be understood to rule out maximal enforcement; whether it reaches further must be left to additional research. Nevertheless, even this narrow finding has bite. Although it cannot not fully account for prosecutorial discretion, unjust laws, and pretextual enforcement, a general obligation of the State not to enforce the law promises to unite these disparate phenomena under a single banner. In doing so, appreciating this non-enforcement improves theorizing about overcriminalization, abolitionism, and—given the impetus for this Symposium issue—burgeoning accounts of criminal law minimalism.
Taxation of Autonomous Artificial Intelligence
108 Marquette Law Review 101 (2025)
This Article proposes that tax can be a useful supplement to other measures to regulate Autonomous Artificial Intelligence (AAI) and limit its potential harmful effects. This proposal differs from command-and-control regulation of AAI along the lines of European Union legislation that may unduly limit the development of AAI. It also differs from existing proposals to tax AAI to generate revenue to help workers displaced by AAI programs, or to tax the data used by AAI. The proposal is based on granting AAI programs like ChatGPT separate legal personhood, like corporate personhood, while incentivizing or requiring their corporate owner to place them in a separate corporate shell. The tax rate on AAI’s income is adjusted based on harmfulness indices based on an objective assessment, thereby creating an incentive for its corporate owner to reduce the harm. Developing a new tax on AAI excludes it from the limits imposed by the existing international tax regime on taxing multinationals, which are inappropriate for a tax on a person that does not have a physical location except on servers that can be located anywhere. Instead, the tax should be levied by the jurisdictions in which AAI users are located.
Branding Corporate Criminals
92 Fordham Law Review 2629 (2024)
Corporate punishment has a branding problem. Criminal sanctions should call out wrongdoing and condemn wrongdoers. In a world where generic corporate misconduct is a daily affair, conviction singles out truly contemptible practices from merely sharp, unproductive, or undesirable ones. In this way, criminal law gives victims the recognition they deserve, deters future wrongdoers who want to preserve their good name, and publicly reinforces society’s most treasured values. Unfortunately, corporate punishment falls far short of all these communicative ambitions. For punishment to convey its intended message, society must be able to hear about it. When courts convict individuals, everyone understands that the conviction places a mark of enduring stigma: “felon,” “thief,” “murderer,” and “fraudster.” The state reinforces this communiqué by reserving its harshest and most degrading treatment for individual criminals, caging them and possibly killing them. Corporate punishment, by contrast, is a fleeting affair diluted by civil and administrative off-ramps, public relations spin, and a frenetic media environment. In today’s criminal justice system, it can be hard to identify who the corporate criminals even are. Unsurprisingly, corporations view criminal charges as inconvenient economic uncertainties and criminal fines as mere costs of doing business. Public perceptions have largely followed suit.
Corporate criminal law could disrupt this perverse dynamic by adopting a new sanction that would “brand” corporate criminals. Although branding sanctions could take many forms—different visual marks of varying size—this Article calls for, at a minimum, appending a criminal designation, ⓕ, to corporate felons’ legal names and mandating its appearance on products and communications. This “corporate criminal brand” would stand as a twenty-first century corporate reimagining of its medieval corporal namesake. Lawmakers rightly rejected physical brands on individual criminals long ago. The criminal justice landscape is different for corporations, which feel no pain and have no dignity interests. Unlike monetary fines, corporate criminal branding would unambiguously signal a corporation’s criminal status to outside observers. By forcibly integrating corporations’ criminal identity into their public image, criminal law might finally have a way to recognize victims and strike at what corporations value most.
But We Haven’t Got Corporate Criminal Law!
47 Journal of Corporation Law 991 (2022)
Should the United States retain corporate criminal law? For more than a century, pearl-clutching abolitionists have decried the conceptual puzzles and supposed injustices of corporate criminal liability. Meanwhile, starry-eyed proponents of corporate criminal law have celebrated a system that they believe can deliver justice for victims and effective punishment to corporate malefactors.
The abolitionists won long ago—through craftiness rather than force of reason. By arguing that the United States should get rid of corporate criminal law, abolitionists staged a debate that presumes corporate criminal law in fact exists. It does not, and it never has. The greatest trick the abolitionist ever pulled was convincing everyone to think otherwise and then duping their opponents into fighting for the status quo. Criminal justice has four distinctive features. It 1) utilizes uniquely demanding procedure to 2) target the worst offenders with 3) the harshest penalties in a manner that 4) expresses society’s deepest moral condemnation. The United States’ purported system of corporate criminal justice lacks all four features. The biggest corporate criminals routinely sidestep all criminal procedure and any possibility of conviction by cutting deals with prosecutors, trading paltry fines and empty promises of reform for government press releases praising their cooperation. The real question is not whether the United States should retain corporate criminal law, but what it would take for the United States to have a corporate criminal justice system in the first place.
A Marketing Pitch for Corporate Criminal Law
2 Stetson Business Law Review 1 (2022)
Corporate criminal law needs a marketing makeover. In the public relations frenzy that follows a corporate criminal investigation, authorities are outgunned and outmaneuvered. Judging by the pastiche of '90s era design choices on the website the Department of Justice uses to announce corporate penalties, authorities are either unaware of the important of marketing or do not care. Prosecutors aren’t marketing professionals. Nor, for that matter, are most scholars writing about corporate misconduct.
Humdrum publicity dilutes corporate sanctions and dulls the edge of criminal justice. Criminal dispositions should single out truly contemptible practices from merely sharp, unproductive, or undesirable ones. In this way, criminal law gives victims the recognition they deserve and deters wrongdoers who would preserve their good name. Corporate punishment today falls far short of these communicative ambitions. It is a fleeting affair diluted by civil and administrative alternatives, PR spin, and a frenetic media environment. It can be hard even to identify after the fact who the corporate criminals are. Unsurprisingly, corporations view criminal charges as inconvenient economic uncertainties and criminal sanctions as mere costs of doing business. Public perceptions have largely followed suit. For punishment to convey its intended message, society must hear it. Some marketing savvy could help. Yet legal scholars working to improve corporate criminal justice (let alone government functionaries enacting it) rarely seek the advice of colleagues in marketing departments. This paper lays the groundwork for dialogue about how to market corporate criminal law better and thereby make it more effective.
Corporate Criminal Law Is Too Broad—Worse, It’s Too Narrow
53 Arizona State Law Journal 199 (2021)
Corporate criminal law is built atop the doctrine of respondeat superior, whereby a business organization can be convicted for virtually any crime committed by its employee. Critics have noted for more than a century that this rule of attribution exposes businesses to the prospect of more criminal liability than is either just or efficient—in short, respondeat superior is overbroad. By contrast, virtually no attention has been paid to the fact that this same doctrine is also underbroad; in addition to including too much conduct under its ambit, respondeat superior also captures too little misconduct. However, this formal symmetry belies a deep, substantive asymmetry. The ambition of this project is to show that respondeat superior’s underbreadth problems are—or, at the very least, are becoming—both more serious and more intractable than its overbreadth problems.
There are several reasons to worry about underbreadth more, and at least one reason to worry about overbreadth less, than we do now. First, because the doctrine treats an individual employee’s liability as a predicate to corporate liability, respondeat superior reliably excludes from the criminal law predictable swaths of cases for which, in our ordinary lives, we would be disposed to attribute responsibility to an organization rather than to any individual. Second, respondeat superior is not just generically underinclusive—it’s not failing to capture random instances of wrongdoing—but also becomes less capable of reaching a case even as the normative basis for assigning responsibility to an organization gets stronger. As a result, respondeat superior risks focusing corporate criminal law on peripheral cases of organizational wrongdoing while excluding paradigmatic ones. Third, this disconnect between normative practice and legal doctrine is poised to grow ever starker as machine learning and other algorithmic decision-making processes further confound the criminal law’s attempts to trace corporate misconduct to a single, predicate offender. Fourth and finally, the past three decades have seen laudable, successful efforts to mitigate the risks associated with respondeat superior’s overbreadth. However, those mechanisms ameliorating the problems associated with overbreadth do nothing to manage underbreadth—and, if anything, are likely to make the problems of underbreadth worse.
The Conventional Problem with Corporate Sentencing (and One Unconventional Solution)
24 New Criminal Law Review 397 (2021)
A recent wave of expressive accounts of corporate criminal law operate on the promise that corporate punishment can express a unique form of condemnation not capturable through civil enforcement. Unfortunately, the realities of corporate sentencing have thus far failed to make good on this expressive promise. Viewed in light of existing conventions that imbue meaning into our practices of punishment, corporate sentences rarely impose hard treatment in a manner or degree that these conventions seem to require. Accordingly, standard corporate sanctions turn out to be ill-suited to deliver—and, often, will likely undermine—the stigmatic punch upon which expressive defenses of corporate criminal law depend. A common response to this conventional problem with corporate sentencing has been to propose more, and harsher, corporate punishments. However, this approach overlooks the extent to which corporate punishment derives its stigmatic force from preexisting norms and conventions concerning individual punishment.
If trying to improve corporate punishment, then, expressivists might instead seek either to leverage or to dismantle the underlying conventions that give existing sanctions meaning. An example of the former strategy would be to revitalize long-neglected proposals for corporate shaming by adopting a criminal convention currently absent from the corporate space—namely, the pervasive, stigmatic application of epithets like “thief” or “felon.” An example of the latter would be to join criminal justice reformers in targeting conventions that, in recent decades, have enabled increasingly draconian sentencing practices. On this view, dissolving corporate sentencing’s conventional problem may represent a further, incidental benefit of systemic criminal justice reform.
Incapacitating Criminal Corporations
72 Vanderbilt Law Review 905 (2019)
If there is any consensus in the fractious debates over corporate punishment, it is this: a corporation cannot be imprisoned, incarcerated, jailed, or otherwise locked up. Whatever fiction the criminal law entertains about corporate personhood, having a physical "body to kick"—and, by extension, a body to throw into prison—is not one of them. The ambition of this project is not to reject this obvious point but rather to challenge the less-obvious claim it has come to represent: incapacitation, despite long being a textbook justification for punishing individuals, does not bear on the criminal law of corporations.
This Article argues that incapacitation both can and should serve as a justification for punishing criminal corporations. Descriptively, it interrogates how rote appeals to the impossibility of corporate imprisonment obscure more pressing, challenging questions about whether and to what extent the criminal law can vindicate an account of incapacitation that extends to corporate persons. Excavating a richer conceptual framework for incapacitation from our practices of individual punishment demonstrates that sanctions already imposed in or just outside the criminal law can be better understood as efforts to incapacitate, rather than to deter or rehabilitate, a criminal corporation. Indeed, reevaluating the law's understanding of penal incapacitation provides reason to think that there are similar and perhaps stronger reasons for incapacitating corporate persons than there are for individuals. Prescriptively, the Article leverages this comparative framework to argue that incapacitation should be recognized as a core justification for corporate punishment. Although rehabilitation has gained traction in past decades as a basis for punishing corporations, incapacitation stands as a more realistic, more administrable alternative. This is because a principle of rehabilitation has led to a practice of imposing on corporations intricately designed but dubiously effective internal compliance and governance reforms. Incapacitation, by contrast, lends itself to clear, discrete prohibitions for which the criminal law is better situated to justify, impose, and monitor.
Making Sense of Corporate Criminals: A Tentative Taxonomy
17 Georgetown Journal of Law and Public Policy 775 (2019)
This article proposes a taxonomy to delineate different strategies defending the extension of an ostensibly moralized practice (the criminal law) to ostensibly non-moral agents (corporations). The proposal is to classify strategies for justifying corporate criminal law into three groups: (1) Economic theories reject the unique moral character of criminal law, treating corporate criminal liability as no different than any other type of enforcement regime; (2) moral agency theories identify characteristics necessary for praise and blame and then consider whether corporate agents are capable of satisfying them; and (3) political theories take the criminal law to be a uniquely moralized legal institution, but then deny that corporate criminal liability thereby requires an account of corporate moral responsibility. While the focus of this article is to trace the contours of this conceptual distinction, I offer some tentative reasons to think that the third category—political theories—has gone undertheorized but nevertheless offers the most promising avenue for an ultimate justification of corporate criminal law.
How and Why Corporations Became (and Remain) Persons Under the Criminal Law
45 Florida State University Law Review 479 (2018)
The Supreme Court concluded in 1909 that a corporation, like an individual, can be held criminally responsible for its misconduct. Yet even now, corporate-criminal liability has yet to overcome the same skeptical argument it faced then — and, for that matter, for centuries prior. The skeptic’s challenge appears as simple as it is persistent: Lacking a mind distinct and independent from its constitutive stakeholders, a corporation cannot produce the sorts of intentional attitudes needed to satisfy the law’s mens rea component. In other words, a corporation is straightforwardly incapable of satisfying one of criminal law’s most basic requirements. Accordingly, to the skeptic the very idea of corporate-criminal liability is, and always has been, pure nonsense.
Though it presents as a simple, common-sense challenge to a corporation’s ability to intend — criminally or otherwise — unpacking the skeptic’s critique quickly implicates profound considerations regarding the nature of personhood and proper methods of attribution. Animating the dispute between skeptics and proponents of corporate-criminal liability is a disagreement over how to evaluate personhood, and further how one’s conception of personhood licenses attributions of actions, attitudes, and ultimately responsibility to the entity in question. This brand of disagreement is nothing new: These themes recur throughout Western thought and extend far beyond corporate law, from Plato’s Phaedo to Boethius and Bartolus of Sassoferato, from Thomas Hobbes to John Locke. Given the intellectual lineage behind what is otherwise an ordinary policy disagreement, perhaps it should not be terribly surprising that skepticism about corporate-criminal liability was never put to rest. I don’t expect that we can break this conceptual stalemate all at once, if at all, to solve the challenge facing corporate crime. More to the point, we don’t need to. As it turns out, in taking up this very dispute at the turn of the 20th century, courts and legislature sided with the proponents of corporate crime in a way that the skeptic cannot, or at least should not want to, unwind. The proponents of corporate-criminal liability did not just win the policy fight; they did so in a way that rendered the skeptic’s position incompatible with broader theoretical commitments that are now instrumental to the modern corporation.
On Strict Liability Crimes: Preserving Criminal Intent in an Intent-Free Moral World
110 Michigan Law Review 647 (2012)
The law has long recognized a presumption against criminal strict liability. This Note situates that presumption in terms of moral intuitions about the role of intention and the unique nature of criminal punishment. Two sources-recent laws from state legislatures and recent advances in moral philosophy-pose distinct challenges to the presumption against strict liability crimes. This Note offers a solution to the philosophical problem that informs how courts could address the legislative problem. First, it argues that the purported problem from philosophy stems from a mistaken relationship drawn between criminal law and morality. Second, it outlines a slightly more nuanced moral framework that both accommodates recent thinking in philosophy and preserves the correspondence between moral theory and criminal law that underwrites the presumption against criminal strict liability. Finally, it considers how the contours of this moral framework could inform judicial efforts to accommodate and constrain new criminal strict liability laws.