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- Title
Cruel and Unusual Corporate Punishment.
- Authors
Wagner, Robert
- Abstract
The right to be free from cruel and unusual punishment is one of the most basic and possibly universally agreed-upon rights that Americans have. However, there is a large amount of debate about what constitutes "cruel and unusual" punishment. This debate often revolves around the death penalty, but it also surfaces in many other contexts. One question that has received little attention since the heightened corporate protections granted in Citizens United is whether a corporation could argue against being subjected to "cruel and unusual" punishment. Under the Eighth Amendment of the United States Constitution, "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." Discussion exists regarding the corporate applicability of the "excessive fines" portion of the Amendment but very little exists regarding the actual "cruel and unusual punishments" provision. At first blush, this may seem unsurprising since fines are the dominant way that a corporation is punished. Nevertheless, scholars and jurists are calling for more creative (and arguably more effective) means of punishing a corporation, up to and including the so-called corporate death penalty. Given the increased usage and potential need for these punishments and the increased rights granted to corporations, it is important to examine the applicability and limitations of the Eighth Amendment as related to corporations. I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as a civilized society to remain ever under the regimen of their barbarous ancestors.
- Subjects
UNITED States; PUNISHMENT; CORPORATION law; UNITED States. Constitution. 8th Amendment; EXCESSIVE fines (Constitutional law); FINES (Penalties)
- Publication
Journal of Corporation Law, 2019, Vol 44, Issue 3, p559
- ISSN
0360-795X
- Publication type
Article