Professor Miriam Baer Disputes “Character Theory” of Corporate Crime in Iowa Law Review Response

In a recently published essay on the Iowa Law Review website, “Propping up Corporate Crime with Corporate Character,” Professor Miriam H. Baer responded to Michailis Diamantis’ article in which he introduces character theory as a justification for corporate punishment.

According to Diamantis, when an employee’s crime results from the corporation’s “disposition,” prosecuting and reforming the entity’s character is the proper path. However, when the employee’s crime seems “out of character,” prosecutors should think twice before prosecuting the entity. Diamantis argues that the purpose of punishing entities is neither to prevent wrongdoing nor impose retribution. Rather, it is to rehabilitate corporations with errant dispositions.

Baer, an expert in the area of white collar crime and a former Assistant U.S. Attorney in the Southern District of New York, argued that character theory fails in practice because it is very difficult to identify a corporation’s character flaws and trace them to specific instances of wrongdoing. “A term as malleable as ‘character’ is not without its dark side,” she wrote. “History is replete with examples of those who have relied on assessments of ‘bad character’ to exclude and denigrate disfavored groups.”

Baer teaches in the areas of corporate law, white collar crime, criminal law, and criminal procedure and serves as associate director of the Center for the Study of Business Law and Regulation. She is a member of the American Law Institute and is a frequent commentator on legal issues related to the Mueller investigation and corporate crime.

Read the essay here.