A Charter for Justice: Corporate Enforcement for the New Federalism
As the harms from corporate conduct are escalating — from an opioid epidemic that has claimed hundreds of thousands of lives to climate catastrophes that threaten the destruction of entire cities — federal enforcement is in retreat. With the Supreme Court’s turn to a more extreme form of federalism, the burden of policing corporate conduct will increasingly fall to the states. But for states to succeed in curbing corporate harms, they will need more effective remedies. To that end, this Article proposes a novel approach: restructuring corporations that engage in criminal conduct into public benefit subsidiaries chartered at the state level. This remedy, we argue, will allow states to directly address the harms of culpable corporate conduct without destroying the value corporations create for states and their residents. Rather than relying on ineffectual penalties like fines or value-destroying remedies like dissolution, reforming corporate conduct through state-chartered public benefit subsidiaries realigns incentives with the core justifcation of the corporate form: not targeting the public for value extraction, but the generation of real value through fair and transparent dealings. Our proposal would have the added benefit of helping states to reinvigorate state corporate law, a field desperately in need of meaningful competition and innovation. States that wish to fully harness the power of the corporate form to spur innovation and generate value, we argue, should embrace their own power to reshape corporate purpose as a just and effective form of criminal enforcement.