Case Western Reserve Journal of International Law 52 (2020)
Crime as Cognitive Constraint
thinking on corporate liability. The issue pushes physical and cognitive
boundaries to a degree that traditional cases of transnational corporate
wrongdoing have not. It exposes a gap created by current regimes of
legal responsibility for international speech crimes, such as for the crime
of direct and public incitement to commit genocide. International law
clearly defines legal responsibility for states and natural persons, but
an absence of legal liability persists for corporations. A dominant
discourse that has emerged to address this gap is to expand the universe
of crime. However, as the Facebook issue has shown, criminal law can
operate as a cognitive constraint in appreciating harm. This invites us
to rethink the primacy of crime and its tendency to eclipse other
discourses. Once freed, a broader network of international liabilities is
up for imagining. One possibility that merits further consideration is
tort, writ large on the international plane.
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