CORPORATE CRIME REPORTER
Lying,
Cheating and Stealing
20 Corporate Crime Reporter 26(11), June 22, 2006
For most aspiring young lawyers, here’s the career trajectory:
Top law school.
Clerk for a federal judge.
Appeals court preferable.
Associate at big law firm.
Partner.
Defend multinational corporations.
Millions.
Sailboat.
Retirement on the islands.
For Stuart P. Green, here’s the career trajectory:
Top law school – Yale.
Clerk for a federal judge – Judge Pam Rymer on the Ninth Circuit.
Five years at big law firm – Wilmer, Cutler & Pickering.
And then – back to law school – Louisiana State University –
to teach criminal law.
And write a book – just out – titled – Lying,
Cheating, and Stealing: A Moral Theory of White-Collar Crime (Oxford University
Press, 2006).
“I had always been more interested in philosophizing than in practicing
law,” Green said in an interview with Corporate Crime Reporter.
Why study and write about white-collar crime?
“White collar crime seems to me to involve a kind of moral ambiguity that
is quite striking in the criminal law,” Green said. “We usually
think of the criminal law as involving those acts that we regard as most blameworthy.
That's fitting because the criminal law imposes society's weightiest sanctions. White collar crime is different. It involves conduct that isn't necessarily the most blameworthy.”
In his book, Green writes that “in a surprisingly large number of cases,
there is genuine doubt as to whether what the defendant was alleged to have
done was in fact morally wrong.”
We asked Green what exactly does he mean by a “moral theory of white-collar
crime.”
“The theory is that the best way to understand many of the puzzling questions
that white collar crime poses is to look to the underlying moral concepts by
which white collar crime is informed,” Green said. “The book really
is about lying, cheating and stealing. It's also about coercion, exploitation,
disloyalty, promise breaking, and disobedience. I argue that law and morality
are in a reciprocal relationship – that morality informs law, and law
informs morality.”
Green says that what drove him to write the book was the “uncertainty as to whether some course of action constituted lawful, if hard-hitting, business behavior, or whether instead it constituted serious criminal conduct.”
“Depending on one’s perspective, creative accounting could look
like fraud, tax avoidance could look like tax evasion, witness preparation like
witness tampering, document retention procedures like obstruction of justice,
hard bargaining like extortion, wiliness on the witness stand like perjury,
zealous advocacy like criminal contempt, savvy investing like insider trading,
political contributions like bribery, and permissible field of use restrictions
like illegal market allocation,” Green writes. “At the end of the
day, it was hard to know which conduct should be regarded as merely aggressive
business behavior, and which as criminal. The gap between law and norms seemed
to be growing wider. The moral foundation on which the law is supposed to rest
seemed increasingly shaky.”
The white collar defense bar has become expert at exploiting this moral ambiguity
to its advantage.
White collar lawyers try to portray themselves as the underdogs to federal criminal
prosecutors.
Green has little sympathy.
“Highly paid white collar criminal defense lawyers are more successful
than their public defender counterparts at almost every stage on the criminal
justice process,” Green writes. “They do a better job of persuading
prosecutors not to indict, preventing the prosecution from obtaining evidence
needed to convict, keeping witnesses from talking to prosecutors, presenting
their case in the media, obtaining favorable plea bargains, pursuing post-conviction
appeals, and arguing mitigation in sentencing. Some white collar defendants
even hire publicists and launch websites intended to help repair reputations
damaged by allegations of criminal conduct. All of those retained are expert
in exploiting the moral ambiguity of white collar crime, whether at the trial
or in the larger court of public opinion."
“Jeff Skilling was billed $65 million for his defense in the Enron case,”
Green told Corporate Crime Reporter. “That is almost exactly
twice what the entire state of Louisiana spent on indigent defense last year.
The real imbalance of power is between prosecutors and blue collar defendants.”
We asked Green -- if he were to return to practice, would he come back as a
defense lawyer or as a prosecutor?
‘I think we already have enough prosecutors out there prosecuting drug
and violent crimes,” Green said. “The threat to society posed by
white collar crime is a very grave one. I'm not sure our system is sufficiently
aggressive in the way we pursue white collar crimes. White collar defendants
are not generally the underdogs. They are the ones who are able to go head to
head with the U.S. Attorney's Office. If I were to go back into law practice
– and I certainly do not plan to do so – I think I would prefer
to represent indigent defendants. But if you were to confine me
to white collar crime, on the whole I would prefer to be a prosecutor.”
(For a complete transcript of the interview with Green, see 20 Corporate Crime Reporter 26(11), June 26, 2006, print edition only)
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