Over-criminalization in white collar crime can be viewed as overestimating the harm of fraud, leading to over-reliance on criminal sanctions. In this article, I present evidence that courts instead systematically underestimate the harm of fraud. Since underestimation bias could limit criminal liability to the most egregious cases of fraud, this may be welcomed by critics of white collar over-criminalization. Because this judicial underestimation bias is even stronger in the civil context, however, it ultimately exacerbates over-criminalization. The typical substitute for criminal sanctions is civil and regulatory liability, and the stronger civil bias cripples those sanctions’ effectiveness. With a comparatively limited scope for civil fraud enforcement, prosecutors may instead increase reliance on criminal sanctions. Moreover, this civil-criminal bias disparity will sabotage the judicial development of clarity in the white collar enforcement framework.
{"title":"Underestimating Fraud","authors":"D. Kwok","doi":"10.2139/ssrn.3578089","DOIUrl":"https://doi.org/10.2139/ssrn.3578089","url":null,"abstract":"Over-criminalization in white collar crime can be viewed as overestimating the harm of fraud, leading to over-reliance on criminal sanctions. In this article, I present evidence that courts instead systematically underestimate the harm of fraud. Since underestimation bias could limit criminal liability to the most egregious cases of fraud, this may be welcomed by critics of white collar over-criminalization. Because this judicial underestimation bias is even stronger in the civil context, however, it ultimately exacerbates over-criminalization. The typical substitute for criminal sanctions is civil and regulatory liability, and the stronger civil bias cripples those sanctions’ effectiveness. With a comparatively limited scope for civil fraud enforcement, prosecutors may instead increase reliance on criminal sanctions. Moreover, this civil-criminal bias disparity will sabotage the judicial development of clarity in the white collar enforcement framework.","PeriodicalId":246002,"journal":{"name":"CJRN: Criminal Law (Topic)","volume":"92 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-04-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132729461","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article contributes in three ways to the prior literature on the reasonable doubt standard. First, it synthesizes the insular strands of historical, economic, jurisprudential, and doctrinal scholarship on reasonable doubt. Second, it advances a conception of the criminal standard of proof designed to avoid the various problems affecting earlier attempts to devise meaningful definitions of reasonable doubt. The definition proposed is that “reasonable doubt” be the standard of proof which minimizes the aggregate subjective expected social cost of false conviction and false acquittal. Judicial pronouncements of Blackstonian ratios (for example, that it is better that ten guilty go free than one innocent be convicted) are interpreted as judicial estimates of these variables, from which efficient reasonable doubt standards may be calculated. It is urged that courts adopt the precise numerical measures of certainty in jury instructions (for example, that a juror should only vote to convict if he is more than x% certain of the defendant’s guilt). Judicial pronouncements of Blackstonian ratios are collected from the caselaw of all fifty states and federal courts to encourage practitioners to test the refined conception in their jurisdiction.
{"title":"Quantifying Reasonable Doubt","authors":"Daniel Pi, F. Parisi, Barbara Luppi","doi":"10.2139/ssrn.3226479","DOIUrl":"https://doi.org/10.2139/ssrn.3226479","url":null,"abstract":"This article contributes in three ways to the prior literature on the reasonable doubt standard. First, it synthesizes the insular strands of historical, economic, jurisprudential, and doctrinal scholarship on reasonable doubt. Second, it advances a conception of the criminal standard of proof designed to avoid the various problems affecting earlier attempts to devise meaningful definitions of reasonable doubt. The definition proposed is that “reasonable doubt” be the standard of proof which minimizes the aggregate subjective expected social cost of false conviction and false acquittal. Judicial pronouncements of Blackstonian ratios (for example, that it is better that ten guilty go free than one innocent be convicted) are interpreted as judicial estimates of these variables, from which efficient reasonable doubt standards may be calculated. It is urged that courts adopt the precise numerical measures of certainty in jury instructions (for example, that a juror should only vote to convict if he is more than x% certain of the defendant’s guilt). Judicial pronouncements of Blackstonian ratios are collected from the caselaw of all fifty states and federal courts to encourage practitioners to test the refined conception in their jurisdiction.","PeriodicalId":246002,"journal":{"name":"CJRN: Criminal Law (Topic)","volume":"9 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-08-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134321820","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
When a corporation commits a crime, whom may we hold criminally liable? One obvious set of defendants consists of the individuals who perpetrated the crime on the corporation's behalf. But according to the responsible corporate officer (RCO) doctrine, the government may also prosecute and punish those corporate executives who, although perhaps lacking "consciousness of wrongdoing," nonetheless have "a responsible share in the furtherance of the transaction which the statute outlaws." In other words, under the RCO doctrine, a corporate executive can come to bear criminal responsibility for an offense of her corporation that she neither participated in nor culpably failed to prevent. Just so long as the executive in question had the authority to prevent the corporate crime and failed to do so, she may be targeted in a criminal suit.The RCO doctrine plainly poses a challenge to our traditional understanding of criminal culpability, according to which guilt is individual -- one may be held responsible only for a wrong one has personally committed, and only if one has done so with a guilty mind. Thus, RCO liability, while representing the most common instance of strict criminal liability, has been deemed "at odds with fundamental notions of our criminal justice system," and likened to the primitive doctrine of Frankpledge, under which innocent members of a group could be punished for the wrongful deed of one of their fellows. On the other hand, corporate crimes have an irreducibly collective aspect. If we take this aspect seriously, as this paper does, then departures from the paradigm of individual culpability may well be warranted. In particular, we may be justified in assigning responsibility not just to the corporate crime's immediate perpetrators but also to those who held prominent positions within the corporation at the time of the crime's occurrence, and this responsibility may license just the kind of criminal liability that the RCO doctrine contemplates. This paper seeks to determine the circumstances under which this extension of responsibility is permissible, and the grounds of its permissibility.More specifically, the paper seeks to critique existing justifications for the doctrine by arguing that these mistakenly construe it as a kind of negligence liability, and in so doing deprive the doctrine of its transformative power. The paper next offers a defense of the doctrine according to which personal guilt is not necessary. The paper then contends with objections to the doctrine, arguing that we need not dispense with the doctrine altogether in order to avoid the concerns of its critics. What is needed instead is a set of guidelines that ensure against the doctrine's misuse or abuse. The paper ends with a specification of these guidelines.
{"title":"Responsible Shares and Shared Responsibility: In Defense of Responsible Corporate Officer Liability","authors":"Amy J. Sepinwall","doi":"10.2139/SSRN.2513431","DOIUrl":"https://doi.org/10.2139/SSRN.2513431","url":null,"abstract":"When a corporation commits a crime, whom may we hold criminally liable? One obvious set of defendants consists of the individuals who perpetrated the crime on the corporation's behalf. But according to the responsible corporate officer (RCO) doctrine, the government may also prosecute and punish those corporate executives who, although perhaps lacking \"consciousness of wrongdoing,\" nonetheless have \"a responsible share in the furtherance of the transaction which the statute outlaws.\" In other words, under the RCO doctrine, a corporate executive can come to bear criminal responsibility for an offense of her corporation that she neither participated in nor culpably failed to prevent. Just so long as the executive in question had the authority to prevent the corporate crime and failed to do so, she may be targeted in a criminal suit.The RCO doctrine plainly poses a challenge to our traditional understanding of criminal culpability, according to which guilt is individual -- one may be held responsible only for a wrong one has personally committed, and only if one has done so with a guilty mind. Thus, RCO liability, while representing the most common instance of strict criminal liability, has been deemed \"at odds with fundamental notions of our criminal justice system,\" and likened to the primitive doctrine of Frankpledge, under which innocent members of a group could be punished for the wrongful deed of one of their fellows. On the other hand, corporate crimes have an irreducibly collective aspect. If we take this aspect seriously, as this paper does, then departures from the paradigm of individual culpability may well be warranted. In particular, we may be justified in assigning responsibility not just to the corporate crime's immediate perpetrators but also to those who held prominent positions within the corporation at the time of the crime's occurrence, and this responsibility may license just the kind of criminal liability that the RCO doctrine contemplates. This paper seeks to determine the circumstances under which this extension of responsibility is permissible, and the grounds of its permissibility.More specifically, the paper seeks to critique existing justifications for the doctrine by arguing that these mistakenly construe it as a kind of negligence liability, and in so doing deprive the doctrine of its transformative power. The paper next offers a defense of the doctrine according to which personal guilt is not necessary. The paper then contends with objections to the doctrine, arguing that we need not dispense with the doctrine altogether in order to avoid the concerns of its critics. What is needed instead is a set of guidelines that ensure against the doctrine's misuse or abuse. The paper ends with a specification of these guidelines.","PeriodicalId":246002,"journal":{"name":"CJRN: Criminal Law (Topic)","volume":"87 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-10-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122952880","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The effectiveness of competition law and its enforcement based on fines as well as behavioral and structural remedies has always been a debatable issue. It is argued that such competition law enforcement based on fines and other remedies has less deterrent effect compared to a system based on criminal sanctions. Therefore some of the jurists and authors have proposed that criminal sanctions should be included in the competition law enforcement. This paper seeks to examine the need and effectiveness of criminal sanctions in enforcement of competition law. It discusses the various justifications for the use of criminal sanctions for competition law enforcement such as Utilitarian Justification of Deterrence; Retributivist Non-Consequentialist Justification; Stigma Effect; To ensure the Obligation of Members or Agents of the Company; To Legitimize the Extra Territorial Application of Competition Law; and To Ensure Cooperation among Countries. At the same time this paper also identifies various practical issues involved in the criminal enforcement of competition law such as the problem of defining competition law offences; attribution of mens rea to corporate bodies; attribution of vicarious liability to the body corporate in criminal law; etc. Further the paper attempts to provide some pragmatic solutions for dealing with the various concerns raised by the criminal enforcement of competition law.
{"title":"The Call for Criminal Sanctions for Enforcement of Competition Law and its Practical Concerns","authors":"Dr. Aneesh V. Pillai","doi":"10.2139/ssrn.3579278","DOIUrl":"https://doi.org/10.2139/ssrn.3579278","url":null,"abstract":"The effectiveness of competition law and its enforcement based on fines as well as behavioral and structural remedies has always been a debatable issue. It is argued that such competition law enforcement based on fines and other remedies has less deterrent effect compared to a system based on criminal sanctions. Therefore some of the jurists and authors have proposed that criminal sanctions should be included in the competition law enforcement. This paper seeks to examine the need and effectiveness of criminal sanctions in enforcement of competition law. It discusses the various justifications for the use of criminal sanctions for competition law enforcement such as Utilitarian Justification of Deterrence; Retributivist Non-Consequentialist Justification; Stigma Effect; To ensure the Obligation of Members or Agents of the Company; To Legitimize the Extra Territorial Application of Competition Law; and To Ensure Cooperation among Countries. At the same time this paper also identifies various practical issues involved in the criminal enforcement of competition law such as the problem of defining competition law offences; attribution of mens rea to corporate bodies; attribution of vicarious liability to the body corporate in criminal law; etc. Further the paper attempts to provide some pragmatic solutions for dealing with the various concerns raised by the criminal enforcement of competition law.","PeriodicalId":246002,"journal":{"name":"CJRN: Criminal Law (Topic)","volume":"22 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-04-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126726988","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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