The Culpable Corporate Mind

Foreword by The Hon Justice Michelle Gordon AC
Preface
Contents
List of Contributors
Table of Cases
Table of Legislation
Table of Instruments and Other Materials (Australia)
Australian State Legislation
Table of Other National Legislation
Table of International Materials
PART I: FRAMEWORKS AND CONTEXTS
1. The Culpable Corporate Mind: Taxonomy and Synthesis
I. Genesis
II. Taxonomy and Synthesis
III. Conclusion
2. Associations and Moral Responsibility: Some Ground-Clearing
I. Introduction
II. The Morality of Association
III. Associations and Moral Responsibility for Actions
IV. Associations and Moral Responsibility for Historic Harms
V. Discharging the Moral Responsibility of Associations
VI. Conclusion
3. Crown Resorts and the Im/moral Corporate Form
I. Why is it Important to Establish the Corporation as a Moral Agent?
II. Crown, Criminal Law and the Requirements of Moral Agency
III. Conclusion
4. Corporate Torts in England: Limiting Liability by Capacity
I. The Problem of Corporate Torts
II. Why Limited Liability?
III. Accommodating Tort within Asset-Partitioning Models
IV. Ultra Vires as a Policing Device for Authorised Action
V. The History of Ultra Vires
VI. Controlling Limited Liability
VII. Defining Corporate Capacity – The Role of Charters (Prerogative Delegation) and Statutes (Legislative Creation)
VIII. Modern Cases on Ultra Vires
IX. Scope of Authority and Ultra Vires
X. A Revival of Corporate Purposes Doctrine?
5. The Corporate Culpability of Big Tech
I. Big Tech's Small Liabilities
II. Big Tech's Systems
III. Opportunities for Further Work
PART II: ATTRIBUTION MODELS
6. Meridian, Allocated Powers and Systems Intentionality Compared
I. Three Models
II. Comparing the Models
III. Compatibility of the Models
IV. Conclusion
7. Reactive Corporate Fault
I. Reactive Corporate Fault Revisited – Overview
II. The Concept of Reactive Corporate Fault
III. Statutory Reform of Corporate Fault and Reactive Corporate Fault
IV. Conclusion: Advantages of Proposed Statutory Adoption of Reactive Corporate Fault and Possible Concerns
8. Ideas of Corporate Culture from the Perspective of Penalties Jurisprudence
I. Introduction
II. The Corporate Culture Provisions
III. A Framework for Analysis of Penalties Jurisprudence
IV. Analysis of Australian Civil Penalties Jurisprudence
V. Conclusion
9. Systems Intentionality: Theory and Practice
I. Introduction
II. Genesis and Features of Systems Intentionality
III. Systems within the Spectrum of Behaviours
IV. Proving Systems Intentionality
V. Conclusion
10. How to Read a Corporation's Mind
I. Discerning the Corporate Mind, From Where to How
II. A Tradition of Looking for Corporate Mental States
III. Systems Intentionality
IV. Inferring Minds, Natural and Corporate
V. Systems Intentionality at Sentencing
PART III: CORPORATE STATES OF MIND
11. Modelling Corporate States of Mind through Systems Intentionality
I. Introduction
II. A Spectrum of Mental States and Related Norms of Conduct
III. Systems Intentionality and Mental States
IV. Conclusion
12. Automated Mistakes: Vitiated Consent and State of Mind Culpability in Algorithmic Contracting
I. Introduction
II. Algorithmic Contracts
III. Plaintiff Mistakes and Defendant Culpability
IV. Algorithmic Contracts and Plaintiff Mistakes
V. Algorithmic Contracts and Systematic Wrongdoing
VI. Conclusion
13. Can Corporations be Dishonest?
I. Introduction: A Rock and a Hard Place
II. Criminal Dishonesty: Lies, Damned Lies and Logistics
III. Corporate Culture: Longitudes and Attitudes
IV. Corporate Dishonesty: Neither Fish nor Foul
V. Conclusion: Can Corporations be Honest?
14. Asset-Based Lending: A Case Study in Unconscionable Systems of Conduct
I. Conscience and Corporations
II. Asset-Based Lending and the Law
III. Stubbings v Jams 2 Pty Ltd
IV. The Survival of Equitable Unconscionability?
V. Conclusion
15. Corporate Contrition
I. Introduction
II. Corporate Remorse and Contrition: A Challenging Concept
III. Meaning of Remorse and Contrition
IV. Functions of Remorse and Contrition
V. Judging Remorse and Contrition
VI. Corporate Contrition and Remorse
VII. Corporate Remorse and Contrition: Future Directions
VIII. Conclusions
PART IV: ALTERNATIVE APPROACHES
16. Culpable Ships
I. Introduction
II. The Origin of Criminal Admiralty Jurisdiction
III. Criminal Admiralty Jurisdiction in Australia
IV. Modern Maritime Criminal Proceedings
V. Why Criminalise Seafarers?
VI. Corporate Attribution
VII. Alternatives to Liability Based upon Corporate Attribution
VIII. The Juristic Entities Compared – Corporations and Ships
IX. Criminal Liability against a Ship
X. Criminal Liability of Ships – To What End?
17. Culpable Executives
I. Introduction
II. Techniques for Executive Liability
III. Two Recent Australian Proposals
IV. Analysis
V. Conclusion
18. 'Failure to Prevent' Offences: The Solution to Transnational Corporate Criminal Liability?
I. Introduction
II. 'Failure to Prevent' Offences
III. An Unjustified Expansion of Omissions Liability
IV. Is Criminalisation Warranted?
V. Reflecting Culpability
VI. Relationship to the Principal Offence
VII. Extraterritoriality
VIII. Conclusion
19. Performance-Based Consumer and Investor Protection: Corporate Responsibility without Blame
I. Introduction
II. The Future of Fraud is Automated
III. Performance-Based Consumer and Investor Protection
IV. Alternative Approaches to Remedy and Deter Corporate Harm
V. The Design and Distribution Obligations and the Consumer Duty
VI. Responsibility for Results
20. Regulatory Pluralism to Tackle Modern Slavery
I. Introduction
II. The Modern Slavery Act 2018 (Cth)
III. The Current Regulatory Landscape
IV. Modern Slavery and Systems Intentionality
V. Conclusion
Index