Catching the corporate conscience: a new model of “systems intentionality”

The law often includes state of mind elements as conditions for defendant liability for serious criminal and civil misconduct. As ongoing law reform inquiries in England and Wales, and Australia, demonstrate, this poses considerable challenges for the just and effective regulation of corporate actors. In that context, this article advocates for a new model of corporate responsibility, called "systems intentionality". This departs from the Identification Theory and other, individualistic attribution approaches by conceptualising the corporate state of mind as manifested in its systems, policies and practices. The article illustrates the model’s distinctive application to a range of topical scenarios.