This article analyzes the origins of the ‘‘responsible corporate officer’’ doctrine:
the trial of Joseph Dotterweich. That doctrine holds that an officer may be personally liable
for the criminal act of a subordinate if the officer was, in some indefinite way, able to
prevent the violation. Applying this doctrine, the prosecution of Dotterweich entailed strict
liability for a strict liability offense. The underlying offenses—the interstate sale of one
misbranded and adulterated drug and one misbranded drug—were said to be strict liability
offenses. And then, with respect to Dotterweich as the corporation’s general manager, the
government argued that he was strictly liable because he stood in ‘‘responsible relation’’ to
the company’s acts. The government never tried to prove that the company, Buffalo
Pharmacal, was negligent, nor did it try to prove that Dotterweich was negligent in his
supervision of the employees of Buffalo Pharmacal. The prosecutor and judge were candid
about this theory throughout the trial, although the judge conceded that it seemed bizarre
and unfair. The defense lawyer repeatedly sought to inject what became known throughout
the trial as the ‘‘question of good faith,’’ but was circumvented at almost every turn. What
would thus seem to be the crux of any criminal trial—the personal fault of the defendant—
was carefully shorn from the jury’s consideration. The government’s theory was so at odds
with intuitive notions of liability and blame that, as one probes into the case, and looks at
the language used in the government’s appellate briefs, imputations of moral fault inevitably
crept in. Yet the government was not entitled to make such accusations, as it had
pruned moral considerations from the trial. The article argues that the responsible corporate
officer doctrine can never enjoy a secure place in our legal system. First, the
doctrine is at a minimum in tension with, and often in direct opposition to, basic principles
of the criminal law; and second, the doctrine fails, when followed to its logical conclusions,
to accord with basic notions of fair play. The article concludes that the responsible
corporate officer doctrine is either unnecessary, in cases in which the evidence establishes
personal fault, or unjust, in cases in which it creates liability in the absence of personal
& Craig S. Lerner
clerner@gmu.edu
1 Antonin Scalia Law School, George Mason University, Fairfax, VA, USA
123
Crim Law and Philos
DOI 10.1007/s11572-017-9439-4
fault through the unspecified notion of ‘‘responsibility.’’ The Dotterweich case illustrates
what is contemplated by the latter possibility, and why it is problematic in any judicial
system that purports, in the words of the Model Penal Code, ‘‘to safeguard conduct that is
without fault from condemnation as criminal.’’

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• The Trial of Joseph Dotterweich: The Origins of the ‘‘Responsible Corporate Officer’’ Doctrine