Case Western Reserve Journal of International Law 52 (2020) Crime as Cognitive Constraint Khanna notes that “a higher standard of proof is only justifiable if the cost of a false corporate conviction exceeds the cost of a false acquittal.” 257 When an individual’s liberty is on the line, proof beyond reasonable doubt makes sense. But when the worst form of sanction constitutes a fine, it is hard to justify the highest standard of proof for the sake of utilizing crime’s symbolic function, which tort also arguably possesses. 258 Can corporate dissolution, then, be equated to individual incarceration? Khanna alternatively proposes a modified form of civil liability generally to capture corporate criminal liability’s desirable effects while avoiding the latter’s undesirable features. 259 The compensatory nature of tort liability can make it undesirable as a cause of action against corporate involvement for Rome Statute crimes. Victims may also prefer the symbolic value of the criminal label rather than simply calling someone a tortfeasor. The perceived equivalence between the punishment upon conviction and the seriousness of the content of international crimes conjures a powerful image. After all, prisons are “highly visible reminders” of criminal law’s deterrent purpose. 260 In contrast, pure civil liability for corporations may not match the gravity of the acts punishable as Rome Statute crimes. Tort law “prices” while criminal law “prohibits.” 261 However, this concern will similarly beset corporate criminal liability due to the inherent impossibility of incarcerating a corporation. Criminal penalties will have to come in the form of a fine. Although there is no pricing insofar as putting a value to “the illegal benefit to the defendant, but rather the cost of preventing the crime to the principal,” it nonetheless involves the same transactional analysis “subject to a trade-off.”262 Viewed in this light, monetary imposition is not so much a point against AND APPROVED PAPERS OF THE CONTROL COMMITTEE 225 (Nov. 30, 1945). COUNCIL AND COORDINATING 257. Khanna, supra note 244, at 1513. 258. See Mary Lyndon, Tort Law and Technology, 12 YALE J. REG. 137, 167– 70 (1995). 259. Khanna, supra note 244, at 1477. 260. John C. Coffee Jr., Does ‘Unlawful’ Mean ‘Criminal’?: Reflections on the Disappearing Tort/Crime Distinction in American Law, 71 B.U. L. REV. 193, 224 (1991). However, the deterrent function of both criminal and tort laws remains questionable, hence insignificant for the comparison of the two regimes for purposes of the article. See, e.g., Morgan, supra note 250, (noting the “highly controversial” deterrent function of tort law); James Chalmers & Fiona Leverick, Fair Labelling in Criminal Law, 71 THE MODERN L. REV. 217, 230 (noting that the deterrent value of criminal law, if any, is not in the severity of the sentences or the nature of the offense for which defendants are prosecuted, but in likelihood of getting caught). 261. Coffee, supra note 260, at 194. 262. Id. at 196. 187