On the Moral Structure of White-Collar Crime
Mitchell N. Berman
University of Texas School of Law
Ohio State Journal of Criminal Law, Vol. 5, p. 301, 2007
LYING, CHEATING, AND STEALING: A MORAL THEORY OF WHITE COLLAR CRIME, Stuart P. Green, ed., Oxford University Press, 2006
U of Texas Law, Public Law Research Paper No. 136
White-collar crime has long presented a puzzle for, or a challenge to, theorists of the criminal law. Indeed, it might be more accurate to say that it presents at least two sorts of puzzles. Some white-collar offenses are puzzling through and through: we are perplexed about why the conduct at the core of the offense is criminalized in the first place. Insider trading is like this, as is (assuming that it counts as white-collar crime) blackmail. With respect to other offenses, our puzzlement attends only to the contours. We have no difficulty understanding why fraud, for example, is criminalized but we have the dickens of a time settling on how the criminal offense of fraud ought to be formulated - what forms of arguably deceptive practices should fall within the criminal ban, what should lie outside, and how much vagueness we should tolerate in the articulation of the border.
This review essay critically examines Stuart Green's attempt to resolve these puzzles in his fascinating new book, Lying, Cheating, and Stealing: A Moral Theory of White-Collar Crime. The book's central thesis, I argue, is that the contours of white-collar criminal offenses (and, possibly, of criminal offenses more generally) ordinarily do, and ought to, closely track the judgments of common-sense morality: Insider trading should be criminalized because it instantiates the underlying moral wrong of cheating. Receiving or soliciting a bribe should be criminalized because it instantiates the moral wrong of disloyalty. Fraud and perjury should have the particular fine-grained contours they do to reflect the fine-grained distinctions recognized by our moral norms against deception and lying. And so on.
After summarizing the book's argument in significant detail, the essay challenges Green's picture of the actual or desirable moral structure of white-collar crime. Focusing in particular on what Green calls the failure to comply regulatory offenses, insider trading, and blackmail, it seeks to show that some criminal offenses are better understood as efforts to prohibit conduct that produces social harms that are not antecedent moral wrongs, while others - which do target moral wrongs - sport contours that, for a variety of practical reasons, depart significantly from the contours of the underlying moral norm that the offense is designed in the first instance to cover. The essay argues, provisionally, that criminal offenses of both sorts can be consistent with the moral commitments of the criminal law - most notably, the negative retributivist commitment that persons ought not to be punished absent, or out of proportion to, their moral blameworthiness. It suggests, in short, that a satisfactory full account of the moral structure of white-collar criminal law should be more sensitive than is Green's provocative and sophisticated theory to the respects in which the law departs from morality to accommodate its different needs and constraints.
Number of Pages in PDF File: 28
Keywords: white-collar crime, mala prohibita, insider trading, blackmailAccepted Paper Series
Date posted: April 18, 2007 ; Last revised: April 7, 2010
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