In 2015, the Yates Memorandum was distributed to senior officials at the United States Department of Justice. This Memorandum aims to increase the prosecution of individuals who are responsible for corporate wrongdoing by providing cooperation credit to corporations that provide evidence of the individual’s wrongdoing to assist the government in resolving the criminal investigations against the corporation itself. The Author begins by explaining the history of corporate criminal liability, and describes how the law has progressed to hold a corporation responsible for the actions of its employees. The Author then examines how the Justice Department’s approach to investigating corporate crime has evolved over the years—this includes encouraging corporations to waive attorney‐ client privilege for the benefits of cooperation. The Yates Memorandum continues this trend by requiring that a corporation turn over all relevant information in order to receive credit for its cooperation.

The Author argues that the Yates Memorandum is problematic because it promotes a culture of distrust between the employees and the directors of corporations, while also eroding the benefits of attorney‐client relationships. The Author further argues that the Yates Memorandum essentially requires defendants to prosecute themselves, which is in direct opposition to the principle that the prosecution has the burden of proving the defendant is guilty. Instead of continuing to delegate investigations to corporations, the Author suggests that the Justice Department ask Congress for the additional resources needed to investigate the allegations of corporate wrongdoing on its own. The Author concludes by asking the Justice Department to reconsider the Yates Memorandum to avoid the risk of the unintended consequences that it poses.

In the United States, corporate criminal liability has developed and evolved over time as a response to growth of corporate economic power and the resulting public policy concerns. Most recently, the Department of Justice announced a new development that was articulated in Deputy Attorney General Sally Yates’ Memo, Individual Accountability for Corporate Wrongdoing. The new policy implements pragmatic procedures for investigating and prosecuting both individuals and corporations for corporate wrongdoing, and reflects the public’s desire for individual accountability, corporate culpability, and the need for equal justice.

This Article discusses the importance of the Yates Memo in the historic framework of corporate criminal liability, and argues that it employs utilitarian and pragmatic approaches to the development of corporate criminal liability, while also acknowledging the need for individual accountability. The Author explains that the acknowledgment for individual accountability is a new element of corporate criminal liability and that it serves two important functions: deterrence and reform of corporate practices under the utilitarian approach, and public demand for prosecutorial policies that give no preferential treatment to white‐ collar offenders. However, the Author suggests that two problems arise with this policy development: it is difficult to successfully prosecute individuals for criminal conduct in the corporate setting, and it is questionable how much of the conduct is even criminal, rather than civil. Finally, the Author explores the relationship between prosecutorial policies and public opinion, concluding that it is difficult to determine how much prosecutorial policy should reflect public opinion when it is continuously shifting and distorted by the media.

This Article analyzes the extent of corporate criminal liability in the Anglo‐American legal system and provides a brief comparison of how this topic has developed in Israel, the United States, and the United Kingdom. The Author explains the American theory of respondeat superior and the factors that are taken into consideration when determining liability, examines the more cautious British approach and the development of the theory of the organs of the corporation, and discusses how these theories have influenced the Israeli approach to corporate criminal liability. The Author also discusses the trend to expand criminal liability, which he calls the second generation of corporate criminal liability by referring to recent laws in the United Kingdom, caselaw in the United States, and internal committee recommendations of the Ministry of Justice in Israel. For example, some lawmakers are attempting to impose a legal duty on entities as an affirmative measure to prevent the commission of certain white‐collar crimes. This and other forms of expansion of corporate criminal liability now impose liability on entities in situations in which such liability would not be imposed on humans. The Author further considers the expansion of criminal liability and the societal reasons for doing so, and then concludes by asking whether the expansion of criminal justice exceeds the cost of deviating from the basic rules of criminal liability.

For over two decades, widespread corporate corruption and oligarchy have plagued Ukraine’s sociopolitical framework. In light of this systemic corruption, Ukrainian lawmakers recently amended the Criminal Code of Ukraine by introducing quasi‐criminal liability for organizations. As a result, artificial legal entities in Ukraine may now be held criminally liable for economic misconduct. However, due to their novelty and lack of doctrinal explanation, these statutory reforms have not been widely accepted among the Ukrainian legal community. Nonetheless, it is the Author’s position that Ukraine’s attempt to impose quasi‐ criminal liability measures is a just and crucial step in its endeavor to eradicate widespread corruption and to join the European Union.

This Article evaluates the positive and negative characteristics of Ukraine’s new corporate quasi‐criminal liability regime. It highlights the extensive corruption that has overwhelmed Ukraine since the early 1990s and argues that stricter corporate criminal liability measures will instill confidence in the Ukrainian government’s regulation of its market economy. After exploring the development of white‐collar criminal jurisprudence in the United States, the Author analyzes Ukraine’s new corporate quasi‐criminal regime. Through this analysis the Author emphasizes that some Ukrainian scholars disagree with the idea that corporations can be held criminally liable for having a “guilty mind,” as it undermines the principle of personal liability—a doctrine deeply rooted in Ukrainian criminal law. In addition, the Author explores the Ukrainian Judiciary’s first attempts at interpreting the new corporate quasi‐criminal liability code. Since few cases involving the new statutory code have been brought before Ukrainian courts, the Author argues that comprehensive guidelines for prosecutors and judges need to be provided to ensure that they are used responsibly and effectively.

Owing to the tort law origins of corporate liability that the respondeat superior standard provides, corporations may be held criminally liable with relative ease. Criminal liability thus attaches to corporations without any requirement that the corporation to be charged is morally culpable for harm or deserving of punishment. The Author argues that when a criminal liability standard is both easily met and imprecisely defined, it results in inconsistent, unpredictable, and unjust discretionary prosecution of corporations. While efforts have been made to temper the inconsistent application of corporate criminal liability law as it exists— notably, the Department of Justice has introduced a moral culpability standard analysis—the Author argues that the true deficiencies lie with the respondeat superior standard, which have not as of yet been effectively remedied.

The Author proposes several changes to, and expansions of, the DOJ Principles of Prosecution that would serve to address the inadequacies of the existing respondeat superior standard in corporate criminal liability prosecutions. The Author draws comparisons to legal standards applied in other jurisdictions and areas of law in order to substantiate the changes proposed. The changes to the legal standard, taken together, would serve to clarify, codify, and simplify the criminal prosecution of corporations by carefully limiting liability to those circumstances in which it is most justified. The Author argues that in addition to increasing the consistency of prosecution and outcome, imposing a moral culpability standard before the attachment of criminal liability is consistent policy as outlined in the 2015 Yates Memo and serves public policy goals of incentivizing corporate compliance.

This Article discusses corporate criminal liability for insider trading violations under Sections 10(b) of the Securities Exchange Act of 1934 and Rule 10b–5 of the United States Securities and Exchange Commission. The Author begins by reviewing the basis for insider trading liability and tracking its development since the early 1930s. The Author discusses the required level of mens rea for insider trading—observing that while recklessness is presumed to be sufficient, there is no clear legal standard in this unsettled area of law. Further complicating matters is Congress’ adoption of a “willfulness” element for the criminal enforcement of insider trading. The Author analyzes the effects of this adoption on the existing mens rea requirement, noting the apparent conflict between “recklessness” required at common law and the new “willfulness” requirement for criminal liability. This analysis leads the Author to question whether reckless insider trading, which is likely sufficient for civil liability, might be construed as willful and therefore punished as criminal conduct.

Given the potential for corporate criminal liability of reckless insider trading, the Author argues that it should be eliminated entirely. In other words, corporate criminal liability for insider trading should be limited to knowing violations of the law. The Author offers a number of means to affect such a change, such as the clarification that reckless conduct is not willful conduct, the issuance of prosecutorial guidelines, or a change of penalties through sentencing guidelines. To assuage potential criticisms that the elimination of corporate criminal liability for reckless insider trading disincentivizes corporations from monitoring and guiding employee compliance, the Author argues that existing tort and statutory civil liability is a sufficient basis to deter potential wrongdoing.

This Article explores the rationale behind corporate criminal liability for insider trading and whether the current regime of U.S. insider trading law holds the correct victim accountable. The Author begins by tracing the development of corporate criminal liability generally, and then examines corporate liability for insider trading under the current regime. Under this current regime, the Author addresses various shortcomings, such as the breadth of prosecutorial discretion in indicting corporations for its employees’ actions, and the harm incurred by innocent shareholders through punishing corporations.

The Author argues that the current regime for U.S. insider trading law is absurdly overbroad and wrongly punishes the victim for the crime. Recognizing the need for reform, the Author proposes statutory constraints on the overbroad prosecutorial discretion allowed for indicting corporations for insider trading. The Author argues that the proposed reforms would not affect individual liability for insider trading, but would properly limit corporate liability for insider trading in appropriate circumstances. The Author reasons that properly limiting corporate liability for insider trading furthers the ultimate goal of holding the correct party liable—the employees who commit the crime.

It is commonly believed that slavery ceased to be an issue directly concerning the United States with the passage of the Thirteenth Amendment in 1865. However, the reality is that slavery is still a real, timely issue for U.S. courts and citizens due to its facilitation by U.S. corporations and their business activities abroad. This Article traces the history of corporate liability for human enslavement from its pre‐ World‐War‐II‐roots, through the prosecution of companies that exploited war prisoners and concentration camp inmates for profit in Nazi Germany, to today’s application in industries such as chocolate‐making.

The Author argues that in spite of certain roadblocks established by the U.S. Supreme Court for victims seeking redress, modern‐day corporate human rights violations—such as large U.S. candy‐makers’ use of cocoa supplied by child slaves on African farms—should be allowed to be prosecuted in U.S. courts. Further, the Author argues that corporate human rights violations should be confronted with the same level of moral conviction and zeal exhibited following the egregious crimes of World War II. In addition, this Article analyzes limited signs of hope for today’s victims of slavery, including civil litigation strategies being employed by human rights lawyers representing former slaves, and modest legal reforms that have been enacted and proposed to address the use of slave labor in corporate supply chains.

In United States v. Newman, the United States Court of Appeals for the Second Circuit imposed a new and narrowed standard for establishing a remote tippee’s knowledge and a corporate insider’s personal benefit for purposes of insider trading under Section 10(b) of the Securities Exchange Act of 1934 and Securities and Exchange Commission Rule 10b–5. This Casenote analyzes the Newman decision and contemplates its potential impact on tippee liability in insider trading cases. The Author begins by explaining the history of tippee liability prior to Newman and discussing the Second Circuit’s justifications for gradually narrowing the knowledge standard and deviating from insider trading precedent. The Author then examines the Newman decision, observing that the court held a tippee must actually know of the insider’s breach of a fiduciary duty to be liable for insider trading, which is in contrast with prior caselaw that imposed liability on tippees who should have known of the insider’s breach of a fiduciary duty. Further, the Author notes that the Second Circuit blurred the definition of what suffices as a “personal benefit” to the insider and imposed an ambiguous “meaningfully close” standard that was not grounded in precedent.

The Author argues that the knowledge and personal benefit standards for tippee liability established inNewman significantly hinder the government’s ability to prosecute tippees. This effect undermines public policy and threatens the public’s confidence in markets and investment activities. To promote more effective securities laws, the Author proposes recommendations for a less cumbersome analysis of tippee liability by examining comparable federal antifraud measures, international law, and existing theories of insider trading. The Author concludes by suggesting that the scrutiny of tippee liability cases should focus on whether information was obtained to gain an unfair advantage, and predicting that this focus will simplify the analysis, add predictability to securities laws, and help stabilize markets for investors and the public.