Case Western Reserve Journal of International Law 52 (2020) Crime as Cognitive Constraint Tort’s regulatory function can resolve competing interests. In the BSR report, for instance, one interviewee noted that there was generally nothing wrong with Facebook’s Community Standards, the only problem was its poor implementation. 251 In the words of another interviewee: “We are not in the delete-Facebook camp… we desperately want Facebook to succeed in Myanmar.” 252 This shows the nuanced role that platforms – and corporations generally – play, and whose behavior can be regulated by a tort mechanism that would delicately straddle the excesses of these “new governors” with that of existing ones. Further, through the adjudication of actual disputes, tort law can function as a “useful supplement” and “learning and feedback mechanism” to inform existing regulation. 253 Preliminary injunctive relief can also manage risks posed by technology. 1. Sanction and criminal law’s design Imprisonment is criminal law’s defining feature. Criminal law’s penalty – deprivation of liberty – explains its design. Fair trial rights, a higher burden of proof to convict, a lower standard of proof to assert a defense, the presumption of innocence, proving mens rea — these guarantees are put in place to protect the individual from undue incarceration. This rule applies to corporate officers and agents. If the defendant is a corporation, the effect is not the same. Juridical persons have “no soul to damn, no body to kick.” 254 In arguing for corporate criminal liability, Kaeb proposes a mix of penalties that the ICC can impose on corporations as an alternative: “closure of implicated corporate units, general confiscation of all the company’s assets (rather than the assets only associated with the criminal offense),” the “corporate death penalty” – dissolution – and monitorship. 255 Domestic legal systems presently allow corporate dissolution for violations that are milder in scope than tortious involvement in Rome Statute acts. Internationally, I.G. Farben was dissolved pursuant to Control Council Law No. 9 as punishment for its involvement in the Holocaust. 256 251. BSR Report, supra note 211, at 26. 252. Id. at 24. 253. Morgan, supra note 249, at 536 (citing Mary Lyndon, Tort Law and Technology, 12 YALE J. OF REG. 137, 157, 165 (1995)). 254. See John C. Coffee, Jr., “No Soul to Damn: No Body to Kick”: An Unscandalized Inquiry Into the Problem of Corporate Punishment, 79 MICH. L. REV. 386, 386 (1981) (quoting the Lord Chancellor of England and suggesting alternative criminal penalties that maximize the corporation’s social system and the legal environment to rein in corporate behavior). 255. Kaeb, supra note 196, at 390, 400. 256. Control Council Law No. 9: Providing for the Seizure of Property Owned by I.G. Farbenindustrie and the Control Thereof, art. I, in 1 ENACTMENTS 186