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Moral Ambiguity in White Collar Criminal Law

20 Pages Posted: 28 Jun 2004  

Stuart P. Green

Rutgers Law School


Many cases involving allegations of white collar criminality reflect a striking quality of moral ambiguity, a tendency to blur the lines between what is truly criminal and what is not. After offering five case studies in which such ambiguity is manifest, the article posits ten overlapping and interrelated factors that help explain both the causes and effects of this phenomenon. In some cases, it is difficult to distinguish between what is criminal and what is "merely aggressive" behavior, as when a defendant argues that: alleged extortion was merely "hardball negotiating," obstruction of justice was nothing more than "zealous advocacy," perjury was just "wiliness" on the witness stand, fraud was really "creative accounting," tax evasion was merely "tax avoidance," bribes were actually "campaign contributions," and so on. In other cases (involving, for example, various intellectual property and regulatory offenses), legislatures have criminalized conduct that large segments of the public simply do not regard as worthy of criminalization. Also relevant in understanding the causes and effects of moral ambiguity in white collar criminal law are factors such as: the complexity of the underlying conduct involved; the difficulty of defining harms and identifying victims; the diffusion of responsibility among numerous responsible agents; confusion caused by the statutory conflation of inchoate and completed offenses, and by the distinctive role played by mens rea; the overlap between civil and criminal sanctions; the fact that white collar crimes are often codified apart from more traditional offenses; less severe treatment of white collar crime by prosecutors, the courts, and in sentencing; and the way in which white collar crime is treated by the media and in the academy.

Keywords: White collar crime, moral theory

JEL Classification: K14

Suggested Citation

Green, Stuart P., Moral Ambiguity in White Collar Criminal Law. Notre Dame Journal of Law, Ethics and Public Policy, Vol. 18, p. 501, 2004. Available at SSRN:

Stuart P. Green (Contact Author)

Rutgers Law School ( email )

United States
973-353-3006 (Phone)

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