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Sunday Schedule
Program
Annual
Meeting
Home
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Sunday, January 5, 2003
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1:30-3:15 p.m.
Open Program on Agency and Partnership
William A. Gregory, Georgia State University, Program Chair |
Wilson C
Marriott Wardman Park Hotel
Mezzanine Level |
Limited Liability Entities and the Fifth Amendment
Moderator:
William A. Gregory, Georgia State University
Speakers: - Lawrence Lance Cole, The Pennsylvania State University
- Gary S. Rosin, South Texas College of Law
This presentation will examine the application of the Fifth Amendment "collective entity doctrine" to the "new" forms of business entities now provided for by state law, such as limited liability companies and limited liability partnerships. The application of the Fifth Amendment to these entities has assumed greater importance since the decision of the United States Supreme Court in United States v. Hubbell, 530 U.S. 27 (2000), which held that the Fifth Amendment may protect the contents of documents in the possession of an individual. Under the collective entity doctrine, however, the Fifth Amendment protections recognized by the Court in Hubbell may not apply to a limited liability entity--even one formed by a single individual in a state that permits single-member limited liability companies.
The history and evolution of the collective entity doctrine will be examined, focusing on the anomaly of depriving business entities of a Fifth Amendment privilege against self-incrimination when those entities enjoy other constitutional rights and privileges. The consequences of application of the collective entity doctrine have been exacerbated by recent developments in criminal law that have increased the scope and consequences of potential criminal liability for collective entities, as evidenced by the recent criminal prosecution of the Arthur Andersen accounting firm.
After reviewing the historical development of the collective entity doctrine and the more recently developed theories of corporate criminal liability, the presentation will consider whether all of the "new" forms of limited liability business entities should be subject to those doctrines. The presentation will conclude with an examination of whether the rationale and policy justifications underlying the collective entity doctrine are applicable to all forms of limited liability entities.
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