It is a genuine pleasure to be invited to comment on Mahailis Diamantis’s excellent article, Clockwork Corporations: A Character Theory of Corporate Punishment. I intend to lavish considerable praise on this Article both because it deserves it, and in order to compensate for the inappropriate criticism to which I intend to subject it. I believe that Professor Diamantis has done the best job possible of doing what he sets out to do. But because what he sets out to do is impossible, I will—admittedly unfairly—criticize him for not doing something else.
Professor Diamantis’s goal in Clockwork Corporations is to provide an account of the proper form of punishment for corporate criminality. Individuals working for a corporation are, of course, subject to prosecution and conviction for any crimes that they commit while functioning as a corporate agent. However, under current law, should a corporate employee commit a crime within the scope of his or her employment, the corporation is also subject to prosecution and conviction as a collective entity. Professor Diamantis seeks to identify the form of punishment that is appropriate to the latter situation. He asks how corporations should be punished as collective entities. His answer is the character theory.
The problem with Professor Diamantis’s Article is not that he does not effectively show that if corporations are to be subject to punishment as collective entities, they should be punished according to the character theory. The problem is that corporations should not be subject to punishment as collective entities at all. As a result, Professor Diamantis’s inquiry reduces to: “What is the proper form of punishment to impose in cases in which punishment is improper?” Because the obvious answer to this question is “none,” I contend that what Professor Diamantis actually offers is not a theory of punishment, but a theory of regulation masquerading as a theory of punishment.