The criminalisation of American business(economist.com)
economist.com
The criminalisation of American business
http://www.economist.com/news/leaders/21614138-companies-must-be-punished-when-they-do-wrong-legal-system-has-become-extortion
14 comments
I find it odd that they say that when most of their examples of big corporate penalties involve criminal acts.
I say, let's stop treating companies specially. If somebody works for a company and commits a crime in the course of their job, they should be penalized just the same as if they did it on their own. If the company is somehow responsible themselves (because no individual worker had enough of a hand in what happened to hold them responsible directly), let's apply the same penalties to the company that we'd apply to a person who did what they're accused of.
OK, we can't really put a company in prison. But surely we could enact similar consequences. A person in prison can't easily meet with the public, can't really communicate effectively, and can't really carry out business (or at least they're not supposed to). When appropriate, let's put companies "in prison". If their crime would put a person in prison for a year, shut the company down for a year. They can resume when they've completed their sentence, just like you or I can.
Bank of America's $17 billion settlement looks huge. But it's about a year of profit for them. Imagine if you or I committed a crime of that magnitude, and all we were asked to pay for it was a year's worth of savings. Not even a year's salary, a year of our savings. No, you or I would go to prison, be cut off from our friends and family, and be prevented from working for years. Even after regaining our freedom we'd have a tremendously difficult time putting our lives back together. Let's do the same for BoA. Ten years of no business, then you can go back to doing what you were. Oh, you have a tough time resuming your business after a decade on hiatus? Boo freakin' hoo, that's how it works for the rest of us slobs. As it stands, I'd bet they made a profit on their criminal dealings even after paying the settlement.
I say, let's stop treating companies specially. If somebody works for a company and commits a crime in the course of their job, they should be penalized just the same as if they did it on their own. If the company is somehow responsible themselves (because no individual worker had enough of a hand in what happened to hold them responsible directly), let's apply the same penalties to the company that we'd apply to a person who did what they're accused of.
OK, we can't really put a company in prison. But surely we could enact similar consequences. A person in prison can't easily meet with the public, can't really communicate effectively, and can't really carry out business (or at least they're not supposed to). When appropriate, let's put companies "in prison". If their crime would put a person in prison for a year, shut the company down for a year. They can resume when they've completed their sentence, just like you or I can.
Bank of America's $17 billion settlement looks huge. But it's about a year of profit for them. Imagine if you or I committed a crime of that magnitude, and all we were asked to pay for it was a year's worth of savings. Not even a year's salary, a year of our savings. No, you or I would go to prison, be cut off from our friends and family, and be prevented from working for years. Even after regaining our freedom we'd have a tremendously difficult time putting our lives back together. Let's do the same for BoA. Ten years of no business, then you can go back to doing what you were. Oh, you have a tough time resuming your business after a decade on hiatus? Boo freakin' hoo, that's how it works for the rest of us slobs. As it stands, I'd bet they made a profit on their criminal dealings even after paying the settlement.
One problem with this, is that probably most employees and business partners weren't involved in whatever was done wrong. And they'd be hurt just as much as the people who were involved.
Maybe instead say, the people most likely to have been involved need to be replaced? So fire the board and CxO level people, or the top 3 levels of management of whichever division, or something like that. You'd get a few people who probably weren't involved and miss a few who were, but the overall collateral damage would still be much less.
Maybe instead say, the people most likely to have been involved need to be replaced? So fire the board and CxO level people, or the top 3 levels of management of whichever division, or something like that. You'd get a few people who probably weren't involved and miss a few who were, but the overall collateral damage would still be much less.
I'm not sure that it is as bad as you think. The market vacuum created by the company's missing presence would be filled by a competitor, who would then need to hire staff. It's a strong incentive to make sure that you're involved with a company who conducts all of their business legitimately.
No way. There are tons of transaction costs and inefficiencies that come into play.
Lets say you catch Micron stealing Kingston DRAM technology. SEND THEM TO JAIL! Guess what? Nobody can just kick up DRAM production instantly. Fabs have to be build or converted.
Do you expect Micro workers in Manasas, Virginia to move to Taiwain to work for Winbond?
Monetary penalties, if properly calculated, absolutely would incentivize legit business activity. Even if the amount is enough to force bankruptcy, that is way better than just shutting down.
Lets say you catch Micron stealing Kingston DRAM technology. SEND THEM TO JAIL! Guess what? Nobody can just kick up DRAM production instantly. Fabs have to be build or converted.
Do you expect Micro workers in Manasas, Virginia to move to Taiwain to work for Winbond?
Monetary penalties, if properly calculated, absolutely would incentivize legit business activity. Even if the amount is enough to force bankruptcy, that is way better than just shutting down.
It's not my position, I just pointed out an argument that it may not be a net negative for the industry. In principle I'd rather see far fewer crimes for which imprisonment is our answer, but, OTOH I have been curious about the potential effects of imprisonment on white collar crime.
>Lets say you catch Micron stealing Kingston DRAM technology. SEND THEM TO JAIL! Guess what? Nobody can just kick up DRAM production instantly. Fabs have to be build or converted.
Right, but the fabs aren't necessarily destroyed by a lawsuit; nor will it be the case that every single engineer involved with DRAM is a part of the conspiracy.
>Do you expect Micro workers in Manasas, Virginia to move to Taiwain to work for Winbond?
I don't expect it to be necessary, but if it were, a quarter without DRAM production would drive demand to the point that engineers capable of running Winbond's fab would be happy to relocate, at least temporarily.
>Monetary penalties, if properly calculated, absolutely would incentivize legit business activity. Even if the amount is enough to force bankruptcy, that is way better than just shutting down.
I'm not convinced that the regulatory schemes we currently use are particularly effective. The whole point of my comment was to explore this admittedly extreme alternative. I'm also not convinced this idea is better, but if you just dismiss it without a serious thought then you may as well not bother discussing it all.
>Lets say you catch Micron stealing Kingston DRAM technology. SEND THEM TO JAIL! Guess what? Nobody can just kick up DRAM production instantly. Fabs have to be build or converted.
Right, but the fabs aren't necessarily destroyed by a lawsuit; nor will it be the case that every single engineer involved with DRAM is a part of the conspiracy.
>Do you expect Micro workers in Manasas, Virginia to move to Taiwain to work for Winbond?
I don't expect it to be necessary, but if it were, a quarter without DRAM production would drive demand to the point that engineers capable of running Winbond's fab would be happy to relocate, at least temporarily.
>Monetary penalties, if properly calculated, absolutely would incentivize legit business activity. Even if the amount is enough to force bankruptcy, that is way better than just shutting down.
I'm not convinced that the regulatory schemes we currently use are particularly effective. The whole point of my comment was to explore this admittedly extreme alternative. I'm also not convinced this idea is better, but if you just dismiss it without a serious thought then you may as well not bother discussing it all.
Most employees and shareholders weren't involved in those crazy single-day trading blowups that lost billions either.
Car thieves have friends and family who will be hurt if the thief goes to prison, yet nobody says the thief should walk free because of that.
But when one person steals a car, you don't send their spouse and kids to jail with them. Right?
I think it's similar to a drug lord whose family lives with them in a nice house. If the drug lord gets convicted the children lose their house/home although they were innocent.
Right. They just lose any benefits of associating with the convict. Similarly, employees of a "jailed" company could find new jobs or start their own businesses or whatever, but would lose what they got from the company.
Companies have boards of directors who are supposed to be responsible for what the company does.
I find myself in the curious position of being vehemently anti-prison (it's expensive; it doesn't work for most of the people who find themselves in prison; it's unjust) but lobbying to imprison some company executives.
I find myself in the curious position of being vehemently anti-prison (it's expensive; it doesn't work for most of the people who find themselves in prison; it's unjust) but lobbying to imprison some company executives.
>it doesn't work for most of the people who find themselves in prison
It works for the rest of society to remove criminals. Most criminals are not caught during their first crime. Does anyone have any research on how many crimes a criminal commits before s/he is caught, on average?
It works for the rest of society to remove criminals. Most criminals are not caught during their first crime. Does anyone have any research on how many crimes a criminal commits before s/he is caught, on average?
It works for the rest of society to remove criminals.
Does it really? I thought enacting more extreme sentencing didn't actually lead to having lower crime.
Does it really? I thought enacting more extreme sentencing didn't actually lead to having lower crime.
Agreed, although I think the article is half-right about one thing - out-of-court settlements satisfy nobody. Corporate cheerleaders see them as shakedowns, corporate foes see them as a mere slap on the wrist. Trials would be better, although that will result in the peanut gallery putting the blame on judges and juries, as well as years' worth of motion work designed to slow the process down.
I notice many of the settlements are ultimately sought by the defendants, and suspect they also seek the secrecy provisions. Reading into the BofA settlement recently, it transpired that they the DoJ, unsatisfied with the bank's offer, walked away and said it would file papers in court the following morning. Soon after, the bank called and agreed to a sum close to what the DoJ were seeking. Presumably if they didn't feel the request was justified they could have taken it to court.
I notice many of the settlements are ultimately sought by the defendants, and suspect they also seek the secrecy provisions. Reading into the BofA settlement recently, it transpired that they the DoJ, unsatisfied with the bank's offer, walked away and said it would file papers in court the following morning. Soon after, the bank called and agreed to a sum close to what the DoJ were seeking. Presumably if they didn't feel the request was justified they could have taken it to court.
I can see why a publicly traded company wants to avoid a trial though, defendants are always perceived to be guilty of something. A trial for a company even when factually innocent can damage a company's reputation. Just a well-timed indictment could sink some companies.
>>At the end of the day, peoples' complaint about the financial prosecutions mentioned in the article is this: not enough people went to jail.
Not only that, but also the fact that the fees they paid were a drop in the bucket compared to the profit they made from the practices they were found guilty of.
It's the literal equivalent of a thief stealing $100 and being fined $5 for the crime. He gets to keep most of the money, which of course provides an excellent incentive to keep stealing.
Not only that, but also the fact that the fees they paid were a drop in the bucket compared to the profit they made from the practices they were found guilty of.
It's the literal equivalent of a thief stealing $100 and being fined $5 for the crime. He gets to keep most of the money, which of course provides an excellent incentive to keep stealing.
>"not enough people went to jail"
This would be addressed if individuals were charged criminally, but the prosecutors seem to prefer charging the corporations, then negotiating a settlement, over prosecuting individuals. Charging corporations with criminal actions never made much sense to me, but it seems that the point the author is making is that prosecutors prefer these 'quick wins' to going after corporations with civil lawsuits, or individuals with any charges at all.
This would be addressed if individuals were charged criminally, but the prosecutors seem to prefer charging the corporations, then negotiating a settlement, over prosecuting individuals. Charging corporations with criminal actions never made much sense to me, but it seems that the point the author is making is that prosecutors prefer these 'quick wins' to going after corporations with civil lawsuits, or individuals with any charges at all.
As of my writing this we're six top-level comments in and already a full third of them miss the point of the article, going on to complain about The Economist advocating not punishing companies for malfeasance. For their benefit as well as for the benefit of this comment section as a whole, here's a quick summary of some of the article's central points:
* The article compares the practice of public attorneys demanding settlements in place of public indictment to extortion:
"The formula is simple: find a large company that may (or may not) have done something wrong; threaten its managers with commercial ruin, preferably with criminal charges; force them to use their shareholders’ money to pay an enormous fine to drop the charges in a secret settlement (so nobody can check the details)."
* It points out that this process bypasses the regular justice system, which ought to progress by both legislation and precedent-based case study:
"Perhaps the most destructive part of it all is the secrecy and opacity. The public never finds out the full facts of the case, nor discovers which specific people—with souls and bodies—were to blame. Since the cases never go to court, precedent is not established, so it is unclear what exactly is illegal."
* It further argues that this government-dominated settlement process places all power in the hands of the attorney, thereby undermining the rule of law by introducing an element of arbitrariness and politics to what should be governed by blind justice:
"This undermines the predictability and clarity that serve as the foundations for the rule of law, and risks the prospect of a selective—and potentially corrupt—system of justice in which everybody is guilty of something and punishment is determined by political deals."
* It does not argue that companies should not be liable for misdeeds, in fact it acknowledges the fact:
"In many cases, the companies deserved some form of punishment:...[followed by some examples]"
* The article compares the practice of public attorneys demanding settlements in place of public indictment to extortion:
"The formula is simple: find a large company that may (or may not) have done something wrong; threaten its managers with commercial ruin, preferably with criminal charges; force them to use their shareholders’ money to pay an enormous fine to drop the charges in a secret settlement (so nobody can check the details)."
* It points out that this process bypasses the regular justice system, which ought to progress by both legislation and precedent-based case study:
"Perhaps the most destructive part of it all is the secrecy and opacity. The public never finds out the full facts of the case, nor discovers which specific people—with souls and bodies—were to blame. Since the cases never go to court, precedent is not established, so it is unclear what exactly is illegal."
* It further argues that this government-dominated settlement process places all power in the hands of the attorney, thereby undermining the rule of law by introducing an element of arbitrariness and politics to what should be governed by blind justice:
"This undermines the predictability and clarity that serve as the foundations for the rule of law, and risks the prospect of a selective—and potentially corrupt—system of justice in which everybody is guilty of something and punishment is determined by political deals."
* It does not argue that companies should not be liable for misdeeds, in fact it acknowledges the fact:
"In many cases, the companies deserved some form of punishment:...[followed by some examples]"
You say "miss the point," I say "read between the lines."
When they make specific recommendations at the end, those recommendations are: 1) let some cases go to trial 2) handle "most cases" of corporate wrongdoing in civil courts 3) cut down on the number of things that are illegal.
These are pretty weak recommendations to start with. And then you compare them against the examples they use at the beginning of the article. They paint these examples as massive overreach. The implication is that companies should be allowed to do more and punished less compared to now, when their examples are ones where companies did pretty awful things and then basically got away with it. The punishment was close to zero. Combined with the recommendation for more civil trials and they're basically saying that the government should cut back on investigating and punishing corporate crime, and that the victims should just sue directly. Nobody would recommend that for, say, a car thief, but a big company steals your house and suddenly you have to hire your own lawyer?
So, I agree with the idea that more of this stuff should be brought to trial. But I disagree that these settlements are "mind-boggling", and I disagree that the solution is to move more activity to civil courts.
When they make specific recommendations at the end, those recommendations are: 1) let some cases go to trial 2) handle "most cases" of corporate wrongdoing in civil courts 3) cut down on the number of things that are illegal.
These are pretty weak recommendations to start with. And then you compare them against the examples they use at the beginning of the article. They paint these examples as massive overreach. The implication is that companies should be allowed to do more and punished less compared to now, when their examples are ones where companies did pretty awful things and then basically got away with it. The punishment was close to zero. Combined with the recommendation for more civil trials and they're basically saying that the government should cut back on investigating and punishing corporate crime, and that the victims should just sue directly. Nobody would recommend that for, say, a car thief, but a big company steals your house and suddenly you have to hire your own lawyer?
So, I agree with the idea that more of this stuff should be brought to trial. But I disagree that these settlements are "mind-boggling", and I disagree that the solution is to move more activity to civil courts.
You didn't understand what the article is advocating. The thesis lays it out:
Note also the cute aside where the author attempts to shift blame for corporate activities to individual managers, who can then be charged (in lieu of any punishment of the corporation for acts done by the corporation). The modern version of "Will no one rid me of this meddlesome priest?"
[1] https://www.youtube.com/watch?v=KlPQkd_AA6c
The increasing criminalisation of corporate behaviour in America is bad for
the rule of law and for capitalism.
Note also the cute aside where the author attempts to shift blame for corporate activities to individual managers, who can then be charged (in lieu of any punishment of the corporation for acts done by the corporation). The modern version of "Will no one rid me of this meddlesome priest?"
[1] https://www.youtube.com/watch?v=KlPQkd_AA6c
The thing this article misses is that the companies push for these settlements. If anything you could make a case that the prosecutors have more leverage than they are using and getting smaller settlements than they could have in court. That the threat of damaging the economy from a negative market reaction to a large punishment has caused the justice system to go easy on companies.
These (somewhat) reasonable points are lodged in between a bunch of horribly biased wording, words like "shakedown", "supposed misdeeds", etc.
If people are having a hard time getting past that to the author's point, I'd put the blame on the author.
If people are having a hard time getting past that to the author's point, I'd put the blame on the author.
As far as I know, all of these companies have the option to have their day in open court.
I think the likes of JPMorgan can handle defending themselves legally without falling into commercial ruin.
Usually, with extortion, these kinds of options are not available.
I think the likes of JPMorgan can handle defending themselves legally without falling into commercial ruin.
Usually, with extortion, these kinds of options are not available.
While they may have that option in theory, it apparently isn't viable in practice:
Financial firms rarely survive being indicted on criminal charges. Few want to go the way of Drexel Burnham Lambert or E.F. Hutton. For their managers, the threat of personal criminal charges is career-ending ruin. Unsurprisingly, it is easier to empty their shareholders’ wallets. To anyone who asks, “Surely these big firms wouldn’t pay out if they knew they were innocent?”, the answer is: oddly enough, they might.
First, note "indicted" not "convicted". Second, note the difference between paying with someone else's money vs risking imprisonment/etc yourself (and no, our criminal courts don't have a zero false-positive rate).
Financial firms rarely survive being indicted on criminal charges. Few want to go the way of Drexel Burnham Lambert or E.F. Hutton. For their managers, the threat of personal criminal charges is career-ending ruin. Unsurprisingly, it is easier to empty their shareholders’ wallets. To anyone who asks, “Surely these big firms wouldn’t pay out if they knew they were innocent?”, the answer is: oddly enough, they might.
First, note "indicted" not "convicted". Second, note the difference between paying with someone else's money vs risking imprisonment/etc yourself (and no, our criminal courts don't have a zero false-positive rate).
'Apparently'.
It isn't the indictment that causes financial institutions to collapse, it is the exodus of clients.
For this 'death blow indictment' theory to hold water you'd have to assert that many more people would stop dealing with these firms if indicted than have left them after hearing about these alleged misdeeds for years from the media.
Yes, Arthur Andersen collapsed but their charges were a big surprise and hinted at something much bigger.
It isn't the indictment that causes financial institutions to collapse, it is the exodus of clients.
For this 'death blow indictment' theory to hold water you'd have to assert that many more people would stop dealing with these firms if indicted than have left them after hearing about these alleged misdeeds for years from the media.
Yes, Arthur Andersen collapsed but their charges were a big surprise and hinted at something much bigger.
So you're buying the line that BoA or BNP Paribas would go into bankruptcy if charges were filed? Even the author knew he couldn't make that case and resorted to a weasel-worded implication.
The problem is not that the company would go bankrupt if charges were filed, in fact the author argues that it would be less costly for the companies to go to court. The problem is that the company's officers and employees would lose their jobs, and likely become unemployable at their previous level. Because of this personal cost to the officers and employees, settlement becomes their only viable option.
So we're talking about cases like threatening the world financial system, polluting the whole gulf of mexico, helping the sudanese government while the're committing an actual genocide.. and you're saying the legal system shouldn't act because what if some CxO who profitted from those actions loses their job? Am I misreading you?
My personal opinion is that it does not make much sense to lay criminal charges against a corporation, especially if what "The Economist" is describing is true. I would prefer that the individuals (such as the CxO) responsible for crimes be charged with any relevant civil or criminal laws, and that the corporation only be charged with civil suits.
The problem described here appears to be that no one is truly representing the interests of the shareholders, who are absorbing the losses; one of the questions the author(s) present(s) is whether it is even possible for any employee or officer of the corporation to represent the shareholders' interests if there is a conflict.
The problem described here appears to be that no one is truly representing the interests of the shareholders, who are absorbing the losses; one of the questions the author(s) present(s) is whether it is even possible for any employee or officer of the corporation to represent the shareholders' interests if there is a conflict.
The shareholders absorb the profits, as well.
If a CEO messes up at his job in a purely business sense and the shareholders lose money, that's ok, right? I mean it's the whole idea of having shareholders.
I'd include "broke federal laws and exposed the company to serious financial liability" in the same (or a worse) category.
If a CEO messes up at his job in a purely business sense and the shareholders lose money, that's ok, right? I mean it's the whole idea of having shareholders.
I'd include "broke federal laws and exposed the company to serious financial liability" in the same (or a worse) category.
One has an especially significant right to representation when they are subject to an adverse judgement by a court. This is not about whether the CxO has done something wrong, it is about who should be held responsible, and what process will lead to a just result.
In addition, if someone "broke federal laws and exposed the company to serious financial liability", the corporation(s) should be subject to civil judgement, and the individual(s) should be subject to civil and criminal penalties.
To be clear, I do not object to adverse judgments, I only object to unjust procedures.
In addition, if someone "broke federal laws and exposed the company to serious financial liability", the corporation(s) should be subject to civil judgement, and the individual(s) should be subject to civil and criminal penalties.
To be clear, I do not object to adverse judgments, I only object to unjust procedures.
But is that what the government was gunning for them about or were they doing an 'Al capone' and targeting tax fraud? Without details of the settlement, it's just projection to say that's what the settlement concerned. The argument isn't that the legal system should act, the argument is that the justice system should be transparent--especially when the people issuing the punishment are collecting the payout. Without transparency you create a perverse incentive for the bureaucratic agencies to hunt for targets, drum up charges, and collect windfalls. That's not in the interest of justice or a equitable legal system.
The AG doesn't walk home with an extra B in the bank after a settlement. He's not collecting the payout.
As far as drumming up charges and collecting windfalls.. you think these companies with their legal departments would just hand that money over if they liked their position in court? You think things like "polluted the whole gulf of mexico" is a case of charges being drummed up?
I would have liked to see these cases go to trial, too. But, from the DoJ's perspective, with the manpower they have, if they can wrap up a settlement and move on to the next case, that's a case they wouldn't have investigated if they were busy with litigation.
If you really want to be upset about this type of thing, you should look into how often it affects normal people with normal criminal charges.
As far as drumming up charges and collecting windfalls.. you think these companies with their legal departments would just hand that money over if they liked their position in court? You think things like "polluted the whole gulf of mexico" is a case of charges being drummed up?
I would have liked to see these cases go to trial, too. But, from the DoJ's perspective, with the manpower they have, if they can wrap up a settlement and move on to the next case, that's a case they wouldn't have investigated if they were busy with litigation.
If you really want to be upset about this type of thing, you should look into how often it affects normal people with normal criminal charges.
Or that settling out of court shouldn't be an option. Since if it is, everyone will take it and the system will attempt to corrupt itself.
If settling shouldn't be an option, and indictment is unthinkable, what's that leave for enforcement?
I'm unhappy with the settlements and would have liked to see a big trial, it would have resulted in much bigger fines IMO for these deplorable actions. But that takes a lot more money from the government side. I wonder how the article author feels about "more federal spending".
I'm unhappy with the settlements and would have liked to see a big trial, it would have resulted in much bigger fines IMO for these deplorable actions. But that takes a lot more money from the government side. I wonder how the article author feels about "more federal spending".
I thought this was going to be an article on how there are many American businesses that are breaking laws left and right, buying congressmen and regulators, etc. Yet these businesses seem to continuously get away with these crimes (robo-signing to literally steal people's homes away anyone?), with nothing but a minor slap on the hand (even BofA's massive $17 billion fine is nothing compared to their profits over a few years)
I was disappointed. Oh poor American businesses, woe to them in this period of constantly increasing profits and overpaid executives who make money on the backs of the workers and their stagnant wages. How so unfair. Maybe these businesses should move to a better business climate, like Somalia or Russia. I'm sure it'd be impossible for anyone else to create a similar to (I don't know, just spouting nonsense here) business.
I was disappointed. Oh poor American businesses, woe to them in this period of constantly increasing profits and overpaid executives who make money on the backs of the workers and their stagnant wages. How so unfair. Maybe these businesses should move to a better business climate, like Somalia or Russia. I'm sure it'd be impossible for anyone else to create a similar to (I don't know, just spouting nonsense here) business.
Reading the examples, I had a hard time determining that the article was not being sarcastic. (Oil spills, violation of trade embargo on genocidal regimes, lying to investors, etc.)
The point isn't that the outcome was wrong, but that it should have been achieved in court, not in settlement.
What, you think every business in the US is General Electric?
It's exactly the opposite. GE can deal with the burden that comes with an overbearing State.
There are 23 million businesses in the US, 95% of which are very small businesses run by individuals. They suffer from the burden of too many laws and regulations as well - and a lot more so than the giant corporations.
It's exactly the opposite. GE can deal with the burden that comes with an overbearing State.
There are 23 million businesses in the US, 95% of which are very small businesses run by individuals. They suffer from the burden of too many laws and regulations as well - and a lot more so than the giant corporations.
Isn't that an example of what the article is about?
BigCo does something (presumably) illegal --> BigCo gets investigated by regulators --> BigCo settles out-of-court without admitting anything.
If everything's illegal and traditionally paid off out-of-court, things that are actually harmful/wrong don't get treated any worse than things that are more questionable.
BigCo does something (presumably) illegal --> BigCo gets investigated by regulators --> BigCo settles out-of-court without admitting anything.
If everything's illegal and traditionally paid off out-of-court, things that are actually harmful/wrong don't get treated any worse than things that are more questionable.
That's what it's about, but their proposed remedy is mostly reducing the number of laws and reducing the number of criminal investigations against companies. You or I might see these out-of-court settlements as a symptom of a problem with companies that can get away with (sometimes literal) murder, whereas they seem to see them as a symptom of a system that punishes companies unjustly.
"Perhaps the most destructive part of it all is the secrecy and opacity. The public never finds out the full facts of the case, nor discovers which specific people—with souls and bodies—were to blame. Since the cases never go to court, precedent is not established, so it is unclear what exactly is illegal. That enables future shakedowns, but hurts the rule of law and imposes enormous costs. Nor is it clear how the regulatory booty is being carved up."
Part of the point of the US economy being so burdened by laws and regulations, is that anyone can be found guilty at any time that it's convenient. Any company can be found to be in violation of numerous laws and regulations.
The same holds true of the criminal justice system. It's why the NSA was compiling histories on porn etc. viewing habits related to people they might want to shut up. The point for the government, is to have that power over people at all times, and then use it when it serves their purpose/s.
Such perversions of justice are about power, greed, and control. It always has been, and always will be.
The same holds true of the criminal justice system. It's why the NSA was compiling histories on porn etc. viewing habits related to people they might want to shut up. The point for the government, is to have that power over people at all times, and then use it when it serves their purpose/s.
Such perversions of justice are about power, greed, and control. It always has been, and always will be.
I don't quite understand this article. The author writes "Companies must be punished when they do wrong [...]", but then lists a number of companies who got caught doing wrong, but presents their fines as somehow problematic.
> The increasing criminalisation of corporate behaviour in America is bad for the rule of law and for capitalism
Is it the increasing criminialization of corporate behavior that's really the problem here? Or is the the actual corporate behavior itself?
> Financial firms rarely survive being indicted on criminal charges. Few want to go the way of Drexel Burnham Lambert or E.F. Hutton. For their managers, the threat of personal criminal charges is career-ending ruin. Unsurprisingly, it is easier to empty their shareholders’ wallets.
> The best thing would be for at least some of these cases to go to proper trial [...]. That is hardly in the interests of the regulators or their managerial prey, but shareholders at least should push for that.
So the author is concerned about government fines eroding shareholder value, but doesn't seem concerned that a lengthy public trial would also hurt stock prices or public trust.
I guess I just don't understand the author's worldview. When a big company does something seriously wrong and gets fined by the government, he doesn't seem to be bothered by the company's behavior, but instead he's bothered by the fact that the company is forced to clean up their mess.
> The increasing criminalisation of corporate behaviour in America is bad for the rule of law and for capitalism
Is it the increasing criminialization of corporate behavior that's really the problem here? Or is the the actual corporate behavior itself?
> Financial firms rarely survive being indicted on criminal charges. Few want to go the way of Drexel Burnham Lambert or E.F. Hutton. For their managers, the threat of personal criminal charges is career-ending ruin. Unsurprisingly, it is easier to empty their shareholders’ wallets.
> The best thing would be for at least some of these cases to go to proper trial [...]. That is hardly in the interests of the regulators or their managerial prey, but shareholders at least should push for that.
So the author is concerned about government fines eroding shareholder value, but doesn't seem concerned that a lengthy public trial would also hurt stock prices or public trust.
I guess I just don't understand the author's worldview. When a big company does something seriously wrong and gets fined by the government, he doesn't seem to be bothered by the company's behavior, but instead he's bothered by the fact that the company is forced to clean up their mess.
The point isn't that the companies were or were not doing something wrong, it's the opacity of the entire process--it's almost Kafkaesque. The government accuses them of a crime, gets a payout, and everything gets settled hush-hush. No one knows what exactly about their conduct was illegal or how the fines are being used by the government.
I'd say there are two reasons the status quo isn't beneficial. First, it provides no feedback to the greater business community as to what is illegal vs what is not and how enforcement is going to go about. The opacity denies the market information to adjust. Second, it allows the government to do what Microsoft did to Android and hammer people in private to great benefit without the greater public knowing the charges or claims being made. Regulation should be transparent, even more so with large amounts of cash involved.
I'd say there are two reasons the status quo isn't beneficial. First, it provides no feedback to the greater business community as to what is illegal vs what is not and how enforcement is going to go about. The opacity denies the market information to adjust. Second, it allows the government to do what Microsoft did to Android and hammer people in private to great benefit without the greater public knowing the charges or claims being made. Regulation should be transparent, even more so with large amounts of cash involved.
> The point isn't that the companies were or were not doing something wrong, it's the opacity of the entire process--it's almost Kafkaesque. The government accuses them of a crime, gets a payout, and everything gets settled hush-hush.
I don't think that's really true, though. It's more like "the government accuses them of a crime, and then the company and the government come to a settlement." For instance, look at the recent eBook price fixing matter. The government accused 5 publishers and Apple of a crime. The publishers agreed to a fine and business changes, but Apple refused to settle—and it went to court. The fact that it went much more poorly for Apple through the court process shows why companies are so eager to settle.
Or to put it another way: it's opaque from the outside. From the inside, it's all lawyers deciding what to settle for.
> No one knows what exactly about their conduct was illegal
I think the companies have a very good idea of what they did that the government disapproved of; companies don't want to find out exactly the exact legal result, because they don't want to actually be found guilty of a crime.
> how the fines are being used by the government.
That's not really the business's... well, business. They don't get to dictate that.
*
I agree with you that there should be more visibility in to these settlements, but more so companies can't hide behind "we weren't actually found guilty of a crime". But I don't think companies want that kind of public visibility into their misdeeds. With these secret settlements they can make problems just disappear. And certainly, from the public standpoint, what exactly happens to these huge settlements needs to be more visible.
I don't think that's really true, though. It's more like "the government accuses them of a crime, and then the company and the government come to a settlement." For instance, look at the recent eBook price fixing matter. The government accused 5 publishers and Apple of a crime. The publishers agreed to a fine and business changes, but Apple refused to settle—and it went to court. The fact that it went much more poorly for Apple through the court process shows why companies are so eager to settle.
Or to put it another way: it's opaque from the outside. From the inside, it's all lawyers deciding what to settle for.
> No one knows what exactly about their conduct was illegal
I think the companies have a very good idea of what they did that the government disapproved of; companies don't want to find out exactly the exact legal result, because they don't want to actually be found guilty of a crime.
> how the fines are being used by the government.
That's not really the business's... well, business. They don't get to dictate that.
*
I agree with you that there should be more visibility in to these settlements, but more so companies can't hide behind "we weren't actually found guilty of a crime". But I don't think companies want that kind of public visibility into their misdeeds. With these secret settlements they can make problems just disappear. And certainly, from the public standpoint, what exactly happens to these huge settlements needs to be more visible.
The problem is that the fines are arbitrary, settled out-of-court, and apparently paid at least partly to the people imposing the fine. And backed by the threat of being completely put out of business (no matter how disproportionate that would be), even if you don't think you did what you're accused of (rules can be fuzzy, so the court might not agree).
The article seems to paint a picture that the government is trying to keep the settlements secret, but that doesn't seem to be the case at all. The DoJ was concerned about destroying these companies and causing an even bigger fallout.
As this hasn't proved true the government has gotten more and more bold - forcing larger settlements, making banks admit fault, and they even recently got Bank of America to agree to a 30-page "Statements of Fact" (https://www.documentcloud.org/documents/1278638-statement-of...)
While the BofA "Statements of Fact" doesn't name any specific employees, it can theoretically be used to bear witness against people within the company that made and condoned the actions. We may soon see criminal trials of real people instead of civil trials against corporations.
As this hasn't proved true the government has gotten more and more bold - forcing larger settlements, making banks admit fault, and they even recently got Bank of America to agree to a 30-page "Statements of Fact" (https://www.documentcloud.org/documents/1278638-statement-of...)
While the BofA "Statements of Fact" doesn't name any specific employees, it can theoretically be used to bear witness against people within the company that made and condoned the actions. We may soon see criminal trials of real people instead of civil trials against corporations.
I find it terribly sad that the impetus for reforming the US "threaten and settle" criminal justice system might come from the onerous burden placed on corporations.
In the same way I find it very disappointing how much of the conversation around marijuana legalization is about the economic benefits. By this calculus, we ascribe a non-trivial negative cost to NOT putting people in jail.
In the same way I find it very disappointing how much of the conversation around marijuana legalization is about the economic benefits. By this calculus, we ascribe a non-trivial negative cost to NOT putting people in jail.
The whole American justice system has become one big extortion racket, from top to bottom, and whether it's big corporations or the little guy, who gets threatened with tens of years in prison, and must "settle" for the plea bargain, so the US gov gets an easy win.
Completely misses the point, company's settle because it's in their best interest to do so. If a company is clearly guilty of X, and they settle behind closed doors for 1/5 of X then 'everyone' except the public wins.
Don't forget their defending 'BNP Paribas disgustingly abetted genocide' by saying they should have a public trial when it's the last thing the company wants.
Don't forget their defending 'BNP Paribas disgustingly abetted genocide' by saying they should have a public trial when it's the last thing the company wants.
This is a cool article to show anyone who argues The Economist doesn't have biases. Yes the article isn't clearly supporting a political party, but it certainly is pushing an agenda.
I think it's also an interesting example of whats possible when authors don't need to have a byline.
I think it's also an interesting example of whats possible when authors don't need to have a byline.
How can anyone argue they don't have biases? From a 2013 article they ran explaining their politics:
"We like free enterprise and tend to favour deregulation and privatisation. But we also like gay marriage, want to legalise drugs and disapprove of monarchy. So is the newspaper right-wing or left-wing? Neither, is the answer. . . it opposes all undue curtailment of an individual’s economic or personal freedom. But like its founders, it is not dogmatic. Where there is a liberal case for government to do something, The Economist will air it. Early in its life, its writers were keen supporters of the income tax, for example. Since then it has backed causes like universal health care and gun control. But its starting point is that government should only remove power and wealth from individuals when it has an excellent reason to do so."
http://www.economist.com/blogs/economist-explains/2013/09/ec...
"We like free enterprise and tend to favour deregulation and privatisation. But we also like gay marriage, want to legalise drugs and disapprove of monarchy. So is the newspaper right-wing or left-wing? Neither, is the answer. . . it opposes all undue curtailment of an individual’s economic or personal freedom. But like its founders, it is not dogmatic. Where there is a liberal case for government to do something, The Economist will air it. Early in its life, its writers were keen supporters of the income tax, for example. Since then it has backed causes like universal health care and gun control. But its starting point is that government should only remove power and wealth from individuals when it has an excellent reason to do so."
http://www.economist.com/blogs/economist-explains/2013/09/ec...
Then it is kinda on you to rebut points like "Why a state government should get any share at all of a French firm’s fine for defying the federal government’s foreign policy is not clear" because, well, it really isn't clear.
[deleted]
> "when authors don't need to have a byline."
Actually in general writers at The Economist are not _allowed_ to have a byline.
Actually in general writers at The Economist are not _allowed_ to have a byline.
What's the significance of having or not having a byline? This isn't an anonymous comment on the Internet someplace. It's a piece run by a well-respected magazine (whether or not you agree with their general worldview) that had to pass muster with editors.
What agenda is it pushing?
It's an op ed for economic deregulation and tort reform, as opposed to a journalistic article. Which is not to say that op-eds don't belong in journalistic publications.
I'm at a loss as to how you can read that article as calling for deregulation, short of assuming that if it's from the Economist it can simply be assumed to be calling for those things. I see an article calling for existing regulations to be enforced openly and transparently, rather than criticizing any particular regulation.
Honestly, this sounds like something liberals ought to be lining up behind, not all standing around kicking dirt because they don't like who said it. In fact pretty much everyone who isn't in the government ought to asking for this.
Or is everyone else here really arguing that unknown accusations being settled behind closed doors for often poorly- or un-disclosed amounts of money between the government and big corporations is just peachy keen? Honestly the tone of the most of the replies being made here sort of boggle my mind.
Honestly, this sounds like something liberals ought to be lining up behind, not all standing around kicking dirt because they don't like who said it. In fact pretty much everyone who isn't in the government ought to asking for this.
Or is everyone else here really arguing that unknown accusations being settled behind closed doors for often poorly- or un-disclosed amounts of money between the government and big corporations is just peachy keen? Honestly the tone of the most of the replies being made here sort of boggle my mind.
Is having an opinion the same as having a bias?
When that opinion is different from your own, apparently it's "bias".
Judging the agenda of a (very good, imho) publication (as if it could have one) based on an op-ed is ridiculous. Where is the critical thought? The Economist has been around for 150 years, and if you felt like it you could find individual articles that would indicate any such "bias" you desired.
Oh well.
Judging the agenda of a (very good, imho) publication (as if it could have one) based on an op-ed is ridiculous. Where is the critical thought? The Economist has been around for 150 years, and if you felt like it you could find individual articles that would indicate any such "bias" you desired.
Oh well.
Is TE saying that the corporations are not responsible for what their employees do?
Am I missing the point?
Am I missing the point?
Yes, I think you missed the point. The subheading starts with "Companies must be punished when they do wrong..."
The point is that companies being encouraged to pay secret settlements make it hard for others to learn from precedent.
The point is that companies being encouraged to pay secret settlements make it hard for others to learn from precedent.
It can be helpful to know the following.
The magazine the economist is owned by The Economist group
"The Economist Group is 50% owned by Pearson PLC via The Financial Times Limited. The bulk of the remaining shares are held by individual shareholders including the Cadbury, Rothschild, Schroder, Agnelli" source: Wikipedia
The news paper will sometime push the owners selfish agenda which may or may not be in the readers best interest.
The magazine the economist is owned by The Economist group
"The Economist Group is 50% owned by Pearson PLC via The Financial Times Limited. The bulk of the remaining shares are held by individual shareholders including the Cadbury, Rothschild, Schroder, Agnelli" source: Wikipedia
The news paper will sometime push the owners selfish agenda which may or may not be in the readers best interest.
> Ad Hominem
Def.: Any attempt to discredit a view by calling attention to the character, actions or personal circumstances of those who hold it rather than the reasoning they provide in support of it.
"Ad hominem" is Latin for "against the person." Anything that involves an attack on a person's character we call an Abusive Ad Hominem. Anything that appeals to a person's unique circumstances we call a Circumstantial ad Hominem. These are both fallacious for the simple reason that the personal character and circumstances of the individual reasoner are logically irrelevant to the question whether the reasoning itself is any good.
http://www.csus.edu/indiv/g/gaskilld/criticalthinking/Six%20...
Def.: Any attempt to discredit a view by calling attention to the character, actions or personal circumstances of those who hold it rather than the reasoning they provide in support of it.
"Ad hominem" is Latin for "against the person." Anything that involves an attack on a person's character we call an Abusive Ad Hominem. Anything that appeals to a person's unique circumstances we call a Circumstantial ad Hominem. These are both fallacious for the simple reason that the personal character and circumstances of the individual reasoner are logically irrelevant to the question whether the reasoning itself is any good.
http://www.csus.edu/indiv/g/gaskilld/criticalthinking/Six%20...
It is a good thing for businesses, especially large corporations to have some level of accountability. Companies are more accountable today, than ever before and this seems to be what the author is complaining about.
I don't like business as usual and I think things need to change. This author wants to ignore changing economic and political environments and go back to a time where corporations had near limitless power. This is a classic conservative/Libertarian point of view and it is not a good idea.
The nature of the universe is that it is always changing and evolving. Sure it it is rhythmic and appears to have patterns but things will ALWAYS change. A conservative outlook is not compatible with the nature of the universe. A conservative wants things to stay the same or stop change from occurring. That will always be a losing battle. This is why extremists are almost always conservative. Extreme actions need to be taken to legitimize a view that is so far out of whack with the nature of existence. Think ISIS, Taliban, KKK and Tea Party.
I don't like business as usual and I think things need to change. This author wants to ignore changing economic and political environments and go back to a time where corporations had near limitless power. This is a classic conservative/Libertarian point of view and it is not a good idea.
The nature of the universe is that it is always changing and evolving. Sure it it is rhythmic and appears to have patterns but things will ALWAYS change. A conservative outlook is not compatible with the nature of the universe. A conservative wants things to stay the same or stop change from occurring. That will always be a losing battle. This is why extremists are almost always conservative. Extreme actions need to be taken to legitimize a view that is so far out of whack with the nature of existence. Think ISIS, Taliban, KKK and Tea Party.
>This author wants to ignore changing economic and political environments and go back to a time where corporations had near limitless power.
Not really. Arguing for a graspable set of laws - some countries' laws are entirely contained in a textbook-size book - is not arguing against accountability.
Having managers be responsible for some behavior sounds like a good idea to keep and even expand, though. Maybe Intel anti-competitive behavior wouldn't have been an issue if the Intel CEO knew that 10 years down the road he might be jailed. As it is, it is impossible to punish those who did the misdeeds. If robbing a bank is punishable by jailing, then gross corporate douchebaggery should also be likewise punishable.
Not really. Arguing for a graspable set of laws - some countries' laws are entirely contained in a textbook-size book - is not arguing against accountability.
Having managers be responsible for some behavior sounds like a good idea to keep and even expand, though. Maybe Intel anti-competitive behavior wouldn't have been an issue if the Intel CEO knew that 10 years down the road he might be jailed. As it is, it is impossible to punish those who did the misdeeds. If robbing a bank is punishable by jailing, then gross corporate douchebaggery should also be likewise punishable.
I am just getting to the root of the issue. This article reeks of political bias and motivation. This article isn't really talking about that. I tend to look at things in grand contexts and I can't ignore that aspect of this article.
I'm actually pretty sympathetic to the idea that business wrongdoing shouldn't carry criminal penalties. Maybe those should be reserved for violent people. But if you go down that route, you have to be consistent: no criminal penalties for the guy who embezzles money from the company, because hey that just involves money too. Indeed, crimes like embezellment are a pretty new addition to the criminal law. Prior to maybe 200 years ago, there was no way to describe a crime involving the misuse of money someone lawfully had in his possession.
The big problem with the article is that it's historically myopic. Companies have spent decades whittling down the ability of people to correct corporate malfeasance through civil lawsuits. They have done this by demonizing trial lawyers and class action lawsuits. Well, shutting down one avenue of recourse just means people will seek redress through other avenues. And it turns out that this other avenue is regulatory oversight and criminal penalties.
At the end of the day, peoples' complaint about the financial prosecutions mentioned in the article is this: not enough people went to jail.