Varieties of Responsibility and Organizational Crime

Data from interviews at the head offices of Japanese companies are used to illustrate the highly varied ways in which large organizations hold individuals and subunits responsible for corporate wrongdoing. Noblesse oblige, captain of the ship responsibility, nominated accountability and fault-based responsibility are identified as important types of individual accountability all of which can be unjust and ineffective when decisionmaking is more or less collective. In the face of immense diversity in varieties of responsibility for organizational crime, different strategies for bringing law and organizational culture into alignment are tentatively evaluated.     

The Ethics of Corporate Lawyers: A Sociological Approach

The American Bar Association is considering a revision of its Code of Professional Responsibility. One revision deals specifically with lawyers whose clients are organizations; it attempts to delineate the ethical responsibilities of such lawyers when they discover an employee or a member of one of their clients is engaged in wrongdoing on the organization's behalf. Because the proposal suggests that corporate counsel may be justified in public disclosure of the wrongdoing when the organization itself fails to rectify the problem, it has sparked much controversy in the profession and much speculation as to whether and when corporate counsel will "blow the whistle." The article offers a sociological perspective on the act of a corporate counsel's public disclosure of organizational wrongdoing. The act of disclosure is treated as a social behavior, the likelihood of which is increased or decreased by a number of factors including the attorney's awareness of the wrongdoing, the attorney's orientations to the larger profession, the structure of the professional practice setting within which the counsel is located, and the supports for disclosure offered by the legal profession through its formal organizations. These factors are described and then combined into a general predictive model of disclosure by corporate counsel. A concluding discussion of the general ramifications of the proposed revisions focuses on the social implications of the attorney-client privilege, in which the client is as unique an actor as is the large organization.     

Policing Identities: Cop Decision Making and the Constitution of Citizens

We examine police decision making by focusing on police stories and drawing together contemporary thought about identities and police subculture. Our inquiry suggests that police decision making is both improvisational and patterned. Cops are moral agents who tag people with identities as they project identities of their own. They do engage in raw forms of division or stereotyping, marking some as others to be feared and themselves as protectors of society, while exercising their coercive powers to punish "the bad." Due, in part, to the many ways that they identify themselves, cops also connect with people as unique individuals, including individuals whose categorical identities (e.g., drug dealers) put them at the margins of society. Rather than using their coercive powers to repress these individuals, cops infuse them with certain virtues (e.g., good family men) while cutting them breaks. As they complicate representations of themselves, cops also project complex notions of law and legality. Moral discourse seems to infuse their judgments, while they invoke law strategically as a tool to enforce their moral judgments.     

Allies Already Poised to Comply: How Social Proximity Affects Lactation at Work Law Compliance

This study demonstrates how legal compliance may be better achieved when organizations include individuals who will advocate for newly codified rights and related accommodations. To understand compliance with a new law and the rights it confers, this article examines as its case study the Lactation at Work law, which amends the Fair Labor Standards Act to mandate basic provisions for employees to express breast milk at work. In particular, this study interviewed those organizational actors who translate the law into the policies affecting workers' daily lives: supervising mangers and human resources personnel. Those studied in this article were “Allies Already:” friends or relatives of breastfeeding workers, or ones themselves, who held pro‐breastfeeding values and understood the complexities of combining lactation and employment. They mobilized within their organization to comply with the law swiftly and fully—often even overcomplying. This article demonstrates how heightened compliance, particularly with new laws, may be achieved even without directly affected actors mobilizing their own rights if allies champion needed accommodations.     

Juries and Viewpoint Representation

To generate high-quality deliberations, juries should be diverse in terms of not only demographics but also viewpoints. Using data from the Survey of Texas Adults (n = 1380), we examine whether existing processes select for individuals who represent the population on a variety of viewpoint characteristics, particularly whether the process of forming juries selects for people who are more independent-minded versus authority-minded. We find, on average, that those who believe in the importance of speaking English, are less compassionate, support Biblical literalism, and express more concern about the community effects of wrongdoing are more likely to have been former jurors than to not have served. Death penalty support is also modestly predictive of jury membership. Non-jurors rate their neighborhoods as cleaner than do former jurors. Results point to composition effects in the summonsing process and to the possibility that some types of people exempt themselves from this civic obligation.     

Is there a “common law” of responsibility?

Contrary to common expectations and a good deal of legal folk wisdom, several surveys have failed to find group differences in the way people attribute responsibility and assign punishments. These nonfinding, suggest that there is a considerable degree of consensus about how to judge wrongdoing. The nature of this consensus is examined using survey data collected in two Japanese and one American cities. We examine the extent of group differences in the evaluation of inputs (here a set of hypothetical vignettes), decision rules, and punishments. The paper concludes with a discussion of the conceptual, theoretical, and methodological issues raised by these and similar findings of small group differences. Collectively, these three issues define, an agenda for future research on the nature and extent of a common law of responsibility.This is a revised version of a paper presented at the 1986 meeting of the Law and Society Association. The research was supported by seed funds from the Social Science Research Council and from the University of Michigan and by N.S.F. grant No. SOC 77-242918. Japanese data were gathered and analyzed with support from the Nihon Gakujutsu Shinkokai and Mombusho to the Japanese investigators: Yoko Hosoi, Zensuke Ishimura, Nozomu Matsubara, Haruo Nishimura, Nobuho Tomita, and Kazuhiko Tokoro. They have recently published a book on the project. (Ishimura et al., 1986).     

合规计划有效性评估的制度构成

刑事合规的核心是能够有效实施的合规计划。合规计划有效性评估的制度构成应涉及评估主体、评估对象与评估讨论等几方面。评估主体应具备专业背景和承担法律责任的能力,因此目前第三方组织作为评估主体的思路有其合理之处,但是在构成方式、人员性质等方面仍值得商榷。合规计划有效性的评估对象应包括合规计划本身及其实施情况。在评估涉案企业的具体合规计划时,应根据合规计划是制定、实施于犯罪之前还是之后,对评估标准略作区分,并遵循坚持动态评估、强调内部评估、尊重常识判断与关注个案报告的原则。评估结论目前是检察机关在起诉阶段作出是否起诉等决定的重要参考。如果未来全面建立起企业合规制度,评估结论还应是审判机关定罪量刑的重要情节,建议司法机关将其明确为鉴定意见。     

论不作为过错的侵权责任

作为过错与不作为过错的区分是现代过错侵权行为法的基础 ,因为 ,过错侵权行为法不应要求他人承担积极作为的义务 ,而仅能要求他人承担消极不作为的义务。因此 ,法律可责令行为人就其积极作为的过错承担侵权责任 ,而不应责令行为人就其不作为的行为承担侵权责任。在确立不作为不承担过错侵权责任的原则的同时 ,现代法律亦对这一原则作某些例外的限制 ,认为在这些例外情况下 ,行为人应当承担积极作为的义务 ,如果他们违反这些义务并导致他人损害 ,应当承担侵权责任。     

Between Self-Regulation and the Alien Tort Claims Act: On the Contested Concept of Corporate Social Responsibility

Using Alien Tort Claims Act suits against multinational corporations as an immediate context for discussion, this article explores the emerging field of corporate social responsibility. The article argues for an understanding of concrete legal struggles as part of broader competing strategies for regulating corporate obligations to a multitude of stakeholders. By identifying and analyzing the positions of concrete actors who operate in the field, the main thesis of this article is that the field strongly tilts in the direction of voluntary and self-reliant models of corporate responsibility. The article identifies this process as consistent with the privatization of regulative structures in general and with extant modeling of corporate governance in particular, and points at the correlation between these trends and the interests of multinational corporations.     

论董事对公司债权人负责的法理正当性——从法人组织体说的局限性及其超越之路径展开

董事为什么对公司的债权人承担民事责任是一项必须在法人本质论学说下进行学术探索的工作,而当下的法人组织体说无法为该论题提供正当性依据。在区分作为制度分析与建构支架的理论逻辑基础的法人本质与作为本体论意义上的法人本质这个前提下,董事对公司债权人负责的命题不能从其他法人本质论的学说获取立论根据,只能算作法律的特殊规定。为了阐明该特殊规定的法理正当性,有必要超越法人组织体说的局限性,探求法人本质论层面之外的论证根据。从经济分析的方法来看,该特殊规定表现了帕累托改进效应,其说服力因之得以增强,可作为董事对公司债权人负责的法理正当性来源。     

Intellectual Property and Global Health: From Corporate Social Responsibility to the Access to Knowledge Movement

Any system for the protection of intellectual property rights (IPRs) has three main kinds of distributive effects. It will determine or influence: (a) the types of objects that will be developed and for which IPRs will be sought; (b) the differential access various people will have to these objects; and (c) the distribution of the IPRs themselves among various actors. What this means to the area of pharmaceutical research is that many urgently needed medicines will not be developed at all, that the existing medicines will not be suitable for countries with a precarious health infrastructure or not target the disease variety that is prevalent in poorer regions. Such effects are commonly captured under the rubric of the “10/90 gap” in biomedical research. High prices will also restrict access to medicines as well endanger compliance to treatment schemes. IPRs are mainly held by multinational corporations situated in the developed world, which not only raises egalitarian concerns, but also severely limits the possibilities of companies in poorer countries to realize improvements on existing inventions, as they cannot financially afford to secure freedom to operate, which systematically shrinks the number of potential innovators. Those inequities lead to an enormous burden for the global poor and since no institution is willing to assume the responsibility to fulfil the right to health and the corresponding right of access to essential medicines, we have to analyse alternatives or additions to the actual intellectual property regimes in order to create new incentives to fill this gap.     

A Case Against Crippling Compensation in International Law of State Responsibility

The obligation of States to provide full reparation for internationally wrongful acts, including by full compensation, is one of the bedrock principles of international law. The article challenges this principle for cases where compensation is crippling for the responsible State or its peoples, which can occur when State responsibility is implemented before international courts and tribunals. The International Law Commission's decision not to qualify full reparation for instances of crippling compensation in its influential Articles on State responsibility was an unpersuasive legal position to adopt in 2001, and its rationale has aged badly. However, the failure by States and other actors to challenge it in the following two decades signified its endorsement by the international legal process. Nevertheless, the case against the permissibility of crippling compensation in modern international law can still be made, both on a case-by-case basis and at the level of customary secondary rules of State responsibility.     

Gender,Identity, and Accounts: How White Collar Offenders Do Gender When Making Sense of Their Crimes

When offenders are asked to explain their crimes, they typically portray themselves as decent people despite their wrongdoings. To be effective at managing the stigma of crime, motivational accounts must be believable to the social audience. Thus, variation in patterns of accounts is likely due to the social position of the actors. Here we examine whether gender constrains the way individuals describe their crimes by analyzing the motivational accounts of male and female white collar offenders. Results show that while men and women both elicit justifications when discussing their crimes, they do differ in the frequency with which they call forth specific accounts and in the rhetorical nature of these accounts. When accounting for their crime, white collar offenders draw on gendered themes to align their actions with cultural expectations of masculinity and femininity. These findings suggest that gender does constrain the accounts that are available to white collar offenders.     

公职人员双轨惩戒制度的宪法基础

政务处分法设置双轨惩戒制度有其宪法上的依据。我国宪法为公职人员设置了两种责任制。在功能上,权力责任制强调公职人员应当受人民监督;工作责任制则强调提高工作质量和工作效率。在理念上,权力责任制体现了“为人民服务”的政治要求;工作责任制则意在“反对官僚主义”。由工作责任制发展出的“社会主义责任制”,还进一步确认了相应组织具有宪法赋予的自主管理权。以上述区分为指引,可以合理划分处分决定机关的管理权限。政务处分虽可用于落实工作责任制,却主要是落实权力责任制的工具;任免机关、单位的狭义“处分”则主要是落实工作责任制的工具。监察机关依法不能代替机关、单位直接作出狭义“处分”。狭义“处分”程序可由公职人员任免机关、单位的组织(人事)部门推动。     

Work Rules: How International NGOs Build Law in War‐Torn Societies

Drawing on socio‐legal literature and fieldwork in South Sudan, this article argues that international aid groups operating in conflict settings create and impose a rules‐based order on the local people they hire and on the domestic organizations they fund. Civil society actors in these places experience law's soft power through their daily, tangible, and mundane contact with aid agencies. As employees they are subject to contracts and other rules of employment, work under management and finance teams, document routine activity, and abide by organizational constitutions. In analyzing how South Sudanese activists confront, understand, conform to, or resist these externally imposed legal techniques and workplace practices, this article decenters state institutions as sites for understanding law's power and exposes how aid organizations themselves become arenas of significant legal and political struggle in war‐torn societies.     

Researching Private Security Consumption

This paper has two objectives: to provide an exploratory analysis of the rationalities and constraints that shape consumption of private security within organizations and to discuss some of the issues and questions that need to be addressed in future empirical studies of private security use by organizations. It is based largely on seven semi-directed interviews conducted with security managers, six of whom work in the private sector. While these security managers distanced themselves from responsibility for actual security consumption, arguing that they lack the capacity to make such decisions, they exercise considerable influence over the demand for private security within their organizations. Although all participants noted the relative ease with which they can convince their superiors to invest in security, they also indicated that security must have a demonstrated value-added component for the organization (often in money terms). Furthermore, executives expect security to be minimally intrusive and/or disruptive. This paper reports preliminary results of research on an under-investigated topic; it also builds on the methodological decisions and findings in this research to provide useful information to scholars interested in researching private security consumption in organizations.     

国际组织法律人格滥用与成员国的责任

长期以来，成员国应否对国际组织的不法行为的后果承担责任，存在较大争议。这一问题不论从理论上押或实践上都涉及国际组织的法律人格问题。从本质上而言，如果国际组织具有独立的法律人格，成员国不应对国际组织的债务承担责任。但存在一些例外情况，在此情况下，必须刺破“国际组织的面纱”，由成员国承担共同或连带责任。关于国际组织的“主要责任”和成员国的“次要责任”赔偿顺序问题，受害国或受害国际组织理应有权自主决定责任国或责任国际组织的先后次序。次要性并不意味着在处理求偿要求方面必须按照时间顺序进行。     

再论我国慈善组织公信力的法律重塑

公信力是慈善组织生存之基,公益性是慈善组织公信力之源。影响慈善组织公信力的因素既包括法治因素,也包括文化因素、体制因素等。我国慈善法律体系已经形成,内容较为全面完善,关于慈善组织的法律定位也较为明确,法律实施不到位以及官民二重性是制约我国慈善组织公信力提升的主要原因。官民二重性有悖于慈善组织的民间本性,导致慈善组织的独立性、公益性、运作效率降低,导致对慈善组织监管不力,并进而阻碍慈善事业的健康发展。要以理顺政府和慈善组织的关系为核心,进一步加强慈善法治建设,推动我国慈善的现代转型。在慈善法治建设中,信息公开是前提,创新管理是保障,强化监督是抓手,责任落实是关键。     

Creating the Reasonable Child: Risk,Responsibility, and the Attractive Nuisance Doctrine

In common law, trespassers could not sue for injuries. In the early 1870s, however, courts exempted child trespassers injured by industrial machinery from this rule. The development of the hotly contested “attractive nuisance” doctrine illustrates turn‐of‐the‐twentieth‐century debates about how to allocate the risk of injury from industrial accidents, which linked responsibility to the capacity to understand danger and to exert self‐control. Although at first courts in attractive nuisance cases perceived children as innocent, irrational “butterflies,” they gradually reconceived child plaintiffs to be rational, risk‐bearing individuals, a change reflected and accelerated by the Safety First campaign launched by railroad corporations. This reframing of children's ability to bear risk created the standard of the “reasonable child,” which transferred responsibility for industrial accidents to children themselves. Although by the 1930s the attractive nuisance doctrine had been widely accepted, in practice the “reasonable child” standard posed a difficult hurdle for child plaintiffs to overcome.     

政府推动下的企业社会责任实现机制的构建

企业承担社会责任的动因包括内部动因和外部动因两方面,相应地,企业履行社会责任的机制也包括自律机制和他律机制两方面。政府应从促进自律机制和他律机制建设两方面推动企业履行社会责任。具体而言,政府可以通过为企业创造良好环境、引导企业完善治理结构、重视自律性管理组织作用等手段推动企业自律机制的构建;通过法律体系的构建、评价管理体系及监督体系的完善等建立以政府为主导的企业他律机制。