Nothing I have said in this chapter bears directly on the desirable level of government control of corporate behavior or on the best means of exercising such control. I have made two related but different points. First, the corporation is a suitable object for the imposition of sanctions.* Second, insofar as the imposition of sanctions is deemed desirable, it need not be hampered by the same restrictions as those that tie the government’s hands when dealing directly with individuals. This dual conclusion has wider repercussions, within criminal law and beyond. Let me briefly indicate what they are.
One such repercussion relating to criminal law was foreshadowed earlier in this chapter when I mentioned various ways, other than the distinction between sanction and constraint, in which criminal law can be
therefore that membership in a corporation (e.g., that of its shareholders) is not identityfixing, nor is the membership defined in terms of some other identity-fixing characteristic.
* This does not by itself tell us when, if ever, the imposition of sanctions is warranted, or how it compares with other modes of control.
disaggregated. This implies potential additional ways in which the treatment of corporations within what we broadly conceive as the criminal law can be custom-tailored to suit them. Exploring these possibilities might eventually lead to a two-track system, with the tracks differing along the substantive, procedural, and evidentiary dimensions. These tracks need not, however, end at the boundary of criminal law. The considerations that shape them pertain to other legal areas as well, suggesting a two- track legal system throughout.11 Though some steps in this direction have already been taken, they are spotty and sporadic.12
The considerations canvassed in this chapter also suggest a broader claim, that the corporate economy opens up an area in which government has greater moral leeway than when its coercive power is brought to bear directly on individuals. Interposing an intermediate entity between government and its citizens blunts some of the moral edge of coercion and mitigates the threat it otherwise poses to individuals’ dignity and autonomy. This has two complementary implications. One is that in dealing with corporations, the government may legitimately pursue social goals more aggressively than when dealing with individuals. The second implication is that the greater moral license the government enjoys in regard to corporations may bolster greater circumspection on government’s behalf in dealing with individuals. Shifting government’s coercive powers from individuals to corporations, and letting the latter serve as the preferred vehicles for attaining policy objectives, may provide a way of promoting the social interest with a reduced moral toll.