The Body Corporate

Mihailis Diamantis

To break the law, one must have a body capable of acting. Since U.S. law is committed to a centuries-old legal fiction according to which corporations can break the law, it must have some account of the “bodies” through which corporations act. They may not be tangible bodies we can kick—but within the fiction of the law, they must be bodies that are capable of committing crimes, torts, and other violations. An account of this active element would identify which parts of corporations are capable of causing injuries that are legally attributable to them. Despite its obvious significance for the corporate liability inquiry, the body corporate remains largely untheorized. Failure to attend to the body corporate has led to an odd fact in the modern law of corporate liability: courts use the exact same doctrine for attributing both harmful corporate acts1 and inculpating corporate thoughts.2 For example, when a corporation is accused of bribery, the same legal analysis determines whether it paid an official and whether it did so with a corrupt motive. Earlier in the history of corporate law, jurists were more careful to distinguish the two.3 Yet, this oddity of modern doctrine seems to have escaped notice. With respect to individual defendants, complaining parties must take very different approaches to proving act elements and mental state elements. Acts are the sort of things to which eyewitnesses, documents, and videos can attest directly. Thoughts are hidden, accessible only by inference from circumstantial evidence.5 More importantly, acts and thoughts play fundamentally different justice roles. Acts link harms to the people who cause them.6 Mental states determine whether a person who caused harm did so culpably.7 If someone is injured after tripping over an extension cord, she experiences harm. If the defendant placed the cord there, he caused her harm. But he caused her harm culpably only if he knew (or should have known) that someone might pass by. This Article is about the active element of the corporate structure—what I here call the “body corporate.” The body corporate is to be contrasted with what I have previously dubbed the corporate mind.8 If corporations are to be capable of committing the vast majority of crimes and torts, the law must have some stance on how corporations can satisfy the mental state elements of those violations. Implicit in that stance is a theory of the corporate mind, that is, what it means for a corporation to think or what components of a corporation are capable of thinking on its behalf.

The Body Corporate

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