William & Mary Business Law Review
Abstract
A fundamental precept of the law of conspiracy is that all members of a conspiracy are partners in crime. This precept is the rationale for many doctrines of conspiracy law, including the controversial judge-made rule that all members of a conspiracy are vicariously guilty of substantive crimes foreseeably committed by one member of the conspiracy even if the other members did not commit the substantive offense, intend the offense, or aid or abet its commission. Why does the law impose partnership status and vicarious guilt on lower-level members of a conspiracy who have no ownership stake in the business and no management responsibilities? When and how did the law come to say that all conspirators are partners?
To answer these questions, this Article examines the history of the notion that conspirators are partners in crime. The Article finds that, while conspirators bore some mutual responsibility in the nineteenth century, the notion that conspirators are partners in crime was invented by the Supreme Court in the first half of the twentieth century to justify expansion of conspiracy liability and the lifting of traditional restrictions on conspiracy prosecutions. After the notion was established, it became a general rationale for conspiracy law, including for doctrines that predated the idea. The story illustrates how the concept of agency, a key concept in the regulation of business organizations, has been expanded through analogy and metaphor in modern times to meet perceived social needs.