Is the White Collar Offender Privileged?

Samuel W. Buell

Duke University School of Law

November 26, 2013

Duke Law Journal, Vol. 63, 2013

For at least a decade, and especially since the banking catastrophe, much public commentary has asserted or implied that the American criminal justice system unjustly privileges individuals who commit crimes in corporations and financial markets. This Article demonstrates that this claim is not so, at least not in the ways commonly believed. Law and practice controlling sentencing, evidence, and criminal procedure cannot persuasively be described as privileging the white collar offender. Substantive criminal law makes charges easier to bring and harder to defend against in white collar cases. Enforcement institutions, and the political economy in which they exist, include features that both shelter corporate offenders and heighten their exposure. Corporate actors enjoy a large advantage in legal defense resources relative to others. That advantage, however, does not pay off as measurably as one might expect. Both in general and as applied to recent events in the banking sector, the claim of privilege can be sustained only by showing that basic American arrangements of criminal law and policing have been misguided. A fully developed argument would fault the justice system for failing to treat illegal behavior within firms as requiring omnipresent policing, looser definitions of criminality, the harshest of punishments, and rethinking of rights to counsel. Those who believe corporate offenders are privileged might have a cause. But they should confront the magnitude of their claims. And they should be aware of complications that follow from overreliance on punishment to deal with intractable problems of regulatory control.

Number of Pages in PDF File: 67

Keywords: Corporate Crime, White Collar Crime, Criminal Law, Criminal Procedure, Securities Regulation

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Date posted: March 14, 2013 ; Last revised: December 22, 2014

Suggested Citation

Buell, Samuel W., Is the White Collar Offender Privileged? (November 26, 2013). Duke Law Journal, Vol. 63, 2013. Available at SSRN: https://ssrn.com/abstract=2233098

Contact Information

Samuel W. Buell (Contact Author)
Duke University School of Law ( email )
210 Science Drive
Box 90362
Durham, NC 27708
United States
919-613-7193 (Phone)

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