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Corporate Action and the Failings of the Jesner Decision

One needn’t get very far into the Jesner decision before it is apparent exactly how the US Supreme Court was going to rule...The problem with Kennedy’s approach is that often the corporation is not a tool for doing evil but is the reason for doing evil...[D]ecades of studies...indicate that...the leaders can make bad decisions specifically because they are serving the corporate interest...[T]he conditions within the corporate structure can motivate either positive or negative ethical behaviour...[I]t is important that judges and policy makers recognize that at times the corporate structure is not simply a tool but can be a cause of criminal conduct.  When a company has a repeated history of ignoring the negative impacts it has on the societies in which it operates...then...that it is the corporation and not the individuals within the corporation that is responsible for the misdeed...Kennedy’s opinion shows not just a fundamental misunderstanding of international law, but also of how corporations and corporate environments work...[H]e missed or misrepresented the fundamental question of corporate claims: how do we hold the institution accountable for its institutional failures?...The International Law Commission and states are currently debating the...International Convention on the Prevention and Punishment of Crimes against Humanity.  The current draft proposal states that: “...each State shall take measures...to establish the liability of legal persons for the offences referred to in this draft article...[S]uch liability of legal persons may be criminal, civil or administrative.”  This approach recognizes that it is not simply the individuals who commit the wrong, but that at times a corporation commits its own breaches...

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