Sepinwall, Amy

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James G. Campbell, Jr. Assistant Professor, Department of Legal Studies and Business Ethics, Wharton, University of Pennsylvania
Introduction
I am an assistant professor at Wharton (University of Pennsylvania) in the Department of Legal Studies and Business Ethics. I received my B.A. with First Class Honours in Philosophy and English from McGill University, where I also earned a Masters degree in Bioethics. I graduated with a J.D. from Yale Law School, and a Ph.D. in Philosophy, with Distinction, from Georgetown. Following law school, I clerked for the Honorable Louis H. Pollak of the United States District Court for the Eastern District of Pennsylvania. Prior to my appointment at Wharton, I was an adjunct professor of law at Georgetown University Law Center. My research calls for an expansion of the understandings of responsibility standardly advanced in law and ethics, and a deflation of the conception of the corporation pervading much legal and public discourse. More specifically, I have two research streams, the first looking at questions of responsibility for financial and corporate wrongdoing, and the second interrogating the notion of corporate constitutional rights. Articles emerging from the first research stream address questions about assigning responsibility for corporate crimes: When and why it is appropriate to prosecute and punish corporations, or the executives who work for them? And when is it appropriate to have innocent beneficiaries of a corporate or financial crime return the proceeds they earned from that crime (e.g., when and why might it be appropriate for those who innocently profited from the Madoff Ponzi scheme to return their "winnings"?). Articles emerging from the second stream seek to gain clarity on the kind of citizen the corporation is, for purposes of delineating the scope and strength of its constitutional rights. Prior work has addressed the criminalization of harm to the unborn, reparations for slavery, the responsibility of commanders for atrocities committed by their troops, and the responsibility of citizens for transgressions committed by their nation-state. My works-in-progress seek to articulate an over-arching theoretical framework that will serve as a complement to the traditional, individualist paradigm, and help us assign responsibility for collective wrongdoing.
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  • Publication
    Penn State and the Blame Game
    (2012-01-07) Sepinwall, Amy J; Rosner, Scott
    It has now been two months since scandal rolled into the Happy Valley, with the news that Jerry Sandusky has been charged with 52 counts of child molestation. Much is still uncertain and yet the university, the surrounding community, and the nation as a whole remains fixated on the question of responsibility. In particular, does Penn State bear responsibility for any of the alleged acts of abuse and, if so, on what grounds? If the institution does bear responsibility, ought we to transmit that responsibility to members of the Penn State community? To which members? And what measures should Penn State undertake in response? We address each of these questions in turn.
  • Publication
    Burdening "Substantial Burdens"
    (2016-05-28) Sepinwall, Amy J
    In Hobby Lobby v. Burwell, the Supreme Court held that religious believers could establish that their free exercise was substantially burdened just so long as they—or the corporation they had formed—believed that it was. This highly deferential stance paved the way for yet another challenge to the contraceptive mandate. In Zubik, religious organizations (ROs) contend that it is not just subsidization of contraception that can make an employer complicit in contraception use. Instead, even filling out a form registering one’s objection to the mandate can do so. The government has responded by vigorously arguing that filling out a form cannot reasonably be construed as a substantial burden. One can read the Court’s per curiam opinion as an implicit endorsement of the RO’s claim that the accommodation process substantially burdens their free exercise. Nonetheless, without a decision on the merits, it is not clear just why the ROs should prevail on the substantial burden question. Nor do the parties’ submissions provide the needed clarity as the arguments on each side are irredeemably flawed. Or so at any rate I argue here. I nonetheless believe that there is good reason for ROs to contest the accommodation process, as it requires that the ROs ratify contraceptive use, in contravention of their religious beliefs. On these grounds, I find that the existing process imposes a substantial burden on religious exercise. But I also take seriously the rationale behind the contraceptive mandate and I conclude by seeking to vindicate women’s rights to free contraception in ways that the ROs should find congenial.
  • Publication
    The Unemotional Corporation
    (2014-03-21) Sepinwall, Amy J
    Because corporations are not capable of experiencing emotions, we should stop thinking of them as persons. Corporations are monsters – not in the sense that they are hell-bent on evil but in the sense that they lack certain capacities that are the hallmarks of our humanity. In particular, and like most supernatural creatures populating both mythology and the movieplex, corporations lack the ability to appreciate what it might feel like to be the victim of a wrong and, not unrelatedly, the ability to feel bad when they do wrong. To put it in our folk terminology, the corporation lacks a heart.
  • Publication
    Punishing Penn State
    (2012-07-30) Sepinwall, Amy J; Rosner, Scott
    The NCAA has imposed upon Penn State’s football program a series of punitive sanctions some deem worse than the (so-called) death penalty. The sanctions respond to Penn State’s failure to report and prevent Jerry Sandusky’s sex abuse crimes. We believe that Penn State deserves to be sanctioned, and we agree with the corrective sanctions the NCAA has imposed. But we fear that at least some of the punitive sanctions Penn State has received may be inappropriate.
  • Publication
    Guilty by Proxy: Expanding the Boundaries of Responsibility in the Face of Corporate Crime
    (2012-01-01) Sepinwall, Amy J
    The BP oil spill and financial crisis share in common more than just profound tragedy and massive clean-up costs. In both cases, governmental commissions have revealed widespread wrongdoing by individuals and the entities for which they work. The public has demanded justice, yet the law enforcement response in both cases has been underwhelming. In particular, no criminal indictments have been sought for any of the corporations responsible for the Macondo oil-rig explosion or for the Wall Street banks involved in the financial meltdown. This governmental restraint reflects a deep-seated ambivalence about corporate criminal liability. Though scholars have been debating the justifiability of prosecuting and punishing corporations since the doctrine’s inception just over 100 years ago, virtually no progress has been made by either side. Thus, we have devastating instances of corporate crime and no good justification for prosecuting and punishing corporations. The Article seeks to diagnose the reason for the widespread consternation about the doctrine of corporate criminal liability. It then advances a new theoretical foundation for the doctrine. More specifically, the Article seeks to justify corporate criminal liability by arguing not that the corporation deserves to be punished for its wrongdoing but instead that its members do. Thus the Article conceives of corporate criminal liability as a way of targeting the corporation’s officials, who are blameworthy just in virtue of their role within the corporation. The Article ends by identifying a series of corporate sanctions that reflect the rationale for corporate criminal liability advanced here.
  • Publication
    Responsible Shares and Shared Responsibility: In Defense of Responsible Corporate Officer Liability
    (2014-01-01) Sepinwall, Amy J
    When a corporation commits a crime, whom may we hold criminally liable? One obvious set of defendants consists of the individuals who perpetrated the crime on the corporation's behalf. But according to the responsible corporate officer ("RCO") doctrine, the government may also prosecute and punish those corporate executives who, although perhaps lacking "consciousness of wrongdoing," nonetheless have "a responsible share in the furtherance of the transaction which the statute outlaws>" In other words, under the RCO doctrine, a corporate executive can come to bear criminal responsibility for an offense of her corporation that she neither participated in nor culpably failed to prevent. As long as the executive in question had the authority to prevent the corporate crime and failed to do so, she may be targeted in a criminal suit. The RCO doctrine plainly poses a challenge to our traditional understanding of criminal culpability, according to which guilt is individual—one may be held responsible only for a wrong one has personally committed, and only if one has done so with a guilty mind. Thus, RCO liability, while representing the most common instance of strict criminal liability, has been deemed “at odds with fundamental notions of our criminal justice system,” and likened to the primitive doctrine of frankpledge, under which innocent members of a group could be punished for the wrongful deed of one of their fellows. On the other hand, corporate crimes have an irreducibly collective aspect. If we take this aspect seriously, as this paper does, then departures from the paradigm of individual culpability may well be warranted. In particular, we may be justified in assigning responsibility not just to the corporate crime’s immediate perpetrators, but also to those who held prominent positions within the corporation at the time of the crime’s occurrence, and this responsibility may license just the kind of criminal liability that the RCO doctrine contemplates. This paper seeks to determine the circumstances under which this extension of responsibility is permissible, and the grounds of its permissibility. More specifically, this Article critiques existing justifications for the doctrine by arguing that these mistakenly construe it as a kind of negligence liability, and in so doing deprive the doctrine of its transformative power. It next offers a defense of the doctrine, according to which personal guilt is not necessary, and then contends with objections to the doctrine, arguing that we need not dispense with the doctrine altogether in order to avoid the concerns of its critics. What is needed instead is a set of guidelines that guard against the doctrine’s misuse or abuse. Finally, this Article ends with a specification of these guidelines.
  • Publication
    Conscience and Complicity: Assessing Pleas of Religious Exemptions in Hobby Lobby's Wake
    (2015-01-01) Sepinwall, Amy J
    In the paradigmatic case of conscientious objection, the objector claims that his religion forbids him from actively participating in a wrong (for example, by fighting in a war). In the religious challenges to the Affordable Care Act's employer mandate, on the other hand, employers claim that their religious convictions forbid them from merely subsidizing insurance through which their employees might commit a wrong (for example, by using contraception). The understanding of complicity underpinning these challenges is vastly more expansive than the standard that legal doctrine or moral theory contemplates. Courts routinely reject claims of conscientious objection to taxes that fund military initiatives or to university fees that support abortion services. In Hobby Lobby, however, the Supreme Court took the corporate owners at their word: the mere fact that Hobby Lobby believed that it would be complicit, no matter how idiosyncratic that belief, sufficed to qualify it for an exemption. In this way, the Court made elements of an employee's health-care package the "boss's business" (to borrow from the nickname of the Democrats' proposed bill to overturn Hobby Lobby).
  • Publication
    Corporate Piety and Impropriety: Hobby Lobby's Extension of RFRA Rights to the For-Profit Corporation
    (2015-01-01) Sepinwall, Amy J
    In Burwell v. Hobby Lobby, Inc., the Supreme Court held, for the first time, that the Religious Freedom Restoration Act (RFRA) applied to for-profit corporations and, on that basis, it allowed Hobby Lobby to omit otherwise mandated contraceptive coverage from its employee healthcare package. Critics argue that the Court’s novel expansion of corporate rights is fundamentally inconsistent with the basic principles of corporate law. In particular, they contend that the decision ignores the fact that the corporation, as an artificial entity, cannot exercise religion in its own right, and they decry the notion that the law might look through the corporate veil to protect the corporate owners’ rights even while having the veil shield the owners from liability for the corporation’s wrongs. In addition to these (supposed) deviations from corporate law principles, commentators express deep concern about Hobby Lobby’s implications. Will the decision apply not just to closely-held corporations but to publicly traded ones as well? If so, how should courts deal with disagreement among shareholders about the religious convictions the corporation should adopt? Will the Court-sanctioned exemption from the contraceptive mandate open the door to other religiously-based exemptions from healthcare coverage that the Affordable Care Act requires—blood transfusions for the corporation owned by Jehovah’s Witnesses, or any form of medicine other than faith healing for the corporation owned by Christian Scientists? And does the notion of corporate religious rights threaten to justify corporate invocations of other rights—perhaps even Second Amendment rights to bear arms, or rights of the corporation to vote in political elections? This Article focuses on the corporate law aspects of the decision, and it seeks to respond to the groundswell of reactions among corporate law scholars. I argue here that much of the consternation results from mistaken notions about the nature of the corporation and the rights that its owners may enjoy. The ambition here, however, is not merely to correct misconceptions. This Article seeks to offer a theory of what the corporation is, what it is for, and why we might ascribe religious rights to it in the first place—considerations that elucidate just what Hobby Lobby should, and should not, portend. I argue that constitutional rights should be ascribed to a corporation when it is necessary to protect the constitutional rights of its controlling members. To that end, I provide a way of determining just who the corporation’s controlling members are. At the same time, I seek to elucidate, and ultimately cabin, the scope of corporate religious freedom by considering the burdens that an exemption might impose on third parties. In this way, the Article’s theoretical contributions aim to forestall the parade of horribles that Hobby Lobby otherwise threatens to unleash.
  • Publication
    Failures to Punish: Command Responsibility in Domestic and International Law
    (2009-01-01) Sepinwall, Amy J
    This Article embraces one of two contested understandings of what a failure to punish entails. On the first understanding, a military commander's failure to punish is construed solely as a dereliction of duty. Accordingly, his failure to punish constitutes a separate offense from the underlying atrocity that his troops have committed. The failure to punish is, then, a substantive offense in its own right. On a second understanding, for which I argue here, the failure to punish renders the commander criminally liable for the atrocity itself, even if he neither ordered nor even knew about the atrocity before its occurrence. Here, then, the failure to punish is a mode of liability-it grounds an ascription of the atrocity of one's soldiers to their commander, but does not capture an offense in its own right. For the sake of brevity, I shall refer to these two understandings, respectively, as the substantive offense view and mode of liability view, and I shall follow international and domestic law in employing the term "failure to punish" as a catch-all for the failure to undertake the duty with which commanders are charged to investigate, report, refer, discipline, punish, and so on.
  • Publication
    Responsibility for Historical Injustices: Reconceiving the Case for Reparations
    (2006-01-01) Sepinwall, Amy J
    The twentieth century ended with the vindication of many of its most mistreated victims' cries for reparation.2 Holocaust survivors retrieved over $8 billion in assets frozen in bank accounts or looted by the Nazis;3 Japanese Americans interned during World War II received compensation from the U.S. government;4 Chile compensated descendants of Pinochet's victims;5 Japan redressed Korean "comfort women"; 6 and Canada paid damages to Aboriginals for forced assimilation of their children.7 Absent from the list was the longest suffering and most visible of groups seeking repair - African Americans.8