Judges and legislators are often faced with making decisions that make no sense or, rather, that make sense only after the fact. A case in point involves the explosion of the Deepwater Horizon drilling rig that led to a massive oil spill in the Gulf of Mexico. The destruction that followed the explosion of the rig left many people demanding that someone be punished for what happened to the workers on the rig, to the wildlife in the Gulf, and to the lives of the people living in the area.
Such action is not as easy as it sounds. Had the rig been destroyed by a terror attack or by a criminal cartel, everyone would know what to do. The FBI and local law enforcement departments would investigate the crime scene, collect the evidence, hunt down the perpetrators, and make their arrests. The Justice Department would then prosecute the defendants to the fullest extent of the law. That, however, is not what happened. Instead of career criminals or radical fundamentalists, the Justice Department had to deal with business people and with corporations. Is it possible to prosecute the people involved in the incident? Certainly.
What is more, there are specific laws under which such action can be taken. Laws such as the Clean Water Act, the Refuse Act, and the Migratory Bird Treaty Act could be used to prosecute the offenders.
But what about the corporations themselves?
What about British Petroleum, and Halliburton, and Transocean? How do we hold a corporation liable?
As you will learn in this chapter, criminal liability requires that the prosecutor prove that the defendant possessed a particular mental state when the criminal act was committed. Corporations, however, do not have mental states let alone mental states that can demonstrate criminal liability, so how do we prove corporate criminal liability? What about punishment? How is a corporation punished and just who is actually punished when a corporation is fined? Is it the board of directors and the officers? One would hope so, but often that punishment is shared by the stockholders, the employees, the customers, the community, pensioners, and the public-
at-large, most of whom had nothing to do with the actual wrongs committed. Keep all this in mind as you read this chapter. The results of your reading may surprise you.
(See David M. Uhlmann, “Prosecuting Crimes Against the Earth,” The New York Times, June 4, 2010, p. A-23.)

Questions

1. Would the case against British Petroleum be a civil lawsuit or a criminal action? Explain.

2. Would a case against British Petroleum be brought in state or federal court or could it be
brought in both? Explain.

3. What legal theory or theories might be used to hold a corporation liable for the torts of an employee? Explain.

4. How is a corporation punished in a case like this? Explain.

5. Since shareholders, employees, and customers end up paying for the corporation’s wrongdoing, does it really make any sense to pursue such prosecutions? Explain.