The book The Chickenshit Club does a good job highlighting this (fairly recent) problem with US justice. https://www.nytimes.com/2017/07/05/books/review/the-chickens... "America’s Top Prosecutors Used to Go After Top Executives. What Changed?"
> Meanwhile, the U.S. attorney’s office in San Francisco is conducting a criminal investigation that could result in indictments of both Holmes and Balwani.
I'm not saying criminal charges aren't forthcoming, but it would not fit the pattern of DOJ/SEC coordination in the past.
I think the solution is a much bigger whistle blower program where people are encouraged and financially rewarded for stepping forward and preventing systemic corruption and fraud in our companies. This also helps to give direct evidence of who ordered what and then prosecution becomes a lot easier.
You're absolutely, completely, 100% correct! This crap is abominable. It destroys lives and whole communites for no reason at all other than that they're the wrong color.
This case, though? It might be a little different and maybe not an example of the pattern you're looking at. To be clear, the SEC doesn't bring criminal charges. It's quite literally not an option for them. They shouldn't be derided for doing what they're capable of - levying fines.
Others may be charged in the future, I assume.
Is your complaint that she didn't go to jail?
[1]: http://www.mondaq.com/unitedstates/x/180532/Directors+Office...
More generally, corporations have coopted or subverted most other institutions in the society, including the DOJ and the legislature. (Hooray for unlimited anonymous campaign finance.)
One of the central arguments laid out in that book is that ultimately it is a “gentleman’s code” in the legal world that leads to fewer prosecutions of corporations and individuals executives. The author of that book obtained DOJ memos and conducted interviews with several career prosecutors.
The general takeaway is that US federal prosecutors are inclined to “see the humanity” in corporate executives, and ascribe potential criminal behavior to negligence instead. After all, high powered lawyers and C-suite executives went to the same handful of elite schools, and are likely to run in similar social circles. This is complicated by the fact that the US Department of Justice has two tracks: career civil servants, and political appointees who are often part of a revolving door from whiteshoe criminal defense law firms to government. The political appointees oversee and have ultimate discretion on what cases to pursue and against whom.
The incentives for prosecutors to take cases to trial, as opposed to settling, are also not there. Federal prosecutors cherish their “win rates”, and extracting a settlement from a corporation counts as a win, which in turn helps career advancement. Take a case to court, and if 1/12 of the jurors are unpersuaded, you’ve lost.
In all fairness to George W. Bush’s presidency, his DOJ was given political cover and the necessary resources to prosecute Enron, Worldcom, Tyco, and Arthur Andersen. Both corporation and individual executives were held accountable with financial penalties and heavy jail sentences.
The Obama presidency on the other hand, featured former criminal defense and corporate law firm lawyers leading the DOJ. Many had no previous experience of working as prosecutors, and it showed painfully in several botched prosecutions.
The problem of “chickenshit” prosecution in this country has long predated Citizens United, and several conservative presidents have done a better job than their liberal counterparts of holding corporations accountable, and vice versa.
Corporate money may well add fuel to the fire, but it was by no means the catalyst that got us to where we are today w.r.t. unpunished corporate wrongdoing.
The book is really worth a read, and goes into far greater detail.
Available money at the top (for legal defense, lobbying, etc.) depends on the level of income inequality, which in turn depends on income/estate tax rates, minimum wage, allowable structures for corporate boards, allowable terms of contracts, legality of monopolistic business practices, etc.
Political will from the top of the DOJ depends somewhat on the president’s personality. The era of Teddy Roosevelt or FDR or Lyndon Johnson is long past; the Democrats to hold office have been the type to favor moderation and compromise, and the Republicans since Nixon have been firmly pro-corporate, often bordering on fascist, embroiled in their own criminal conspiracies for which they have largely avoided any direct consequence. But it also depends on whether the president feels beholden to donors or can take an aggressive message directly to the public. With unlimited anonymous campaign money, who can afford to piss off CEOs or Saudi princes?
I’m not quite sure what you mean by “odds of winning...depends heavily on the folks judging the cases.” It’s been my experience in jury selection, both as a potential juror and as a party to litigation, that the lawyers on both sides are going to move to strike any jurors who are “extreme” in any characteristic. Very rich or very poor, very young or very old, etc. It can certainly be the case that appellate court judges have a strong pro or anti corporate bias, but ultimately appellate courts overturn on the basis of constitutional or procedural issues. They can’t overturn the original findings of a jury just because they disgaree.
Re: the influence of money, both in terms of lawyers and campaign contributions: if the federal government actually decides to throw its full weight behind a case, there is a limit to how much a corporation can spend on legal defense. And, even if the defense is represented by the best lawyers, a compelling criminal case can overcome that. Keep in mind that Enron, Tyco, Worldcom, and Andersen were represented by the white shoe-iest of criminal defense firms. At several points, each prosecution encountered significant difficulties, but the government prevailed in the end.
On political money, there is also a limit to its influence. As someone who worked for the Obama campaign in 2012, I was acutely aware that we were being outspent by hundreds of millions of dollars on the other side. A huge majority of Obama’s 2008 Wall Street backers defected to Romney after the passage of Dodd-Frank. However, various political scientists have found that if both sides are adequately funded in a race, the marginal effectiveness of an additional dollar dramatically decreases. Running an ad 500 times a week vs your opponent being able to do it 1500 times makes no measurable impact. It’s true that in local races, money can have a huge distortionary impact. However, for the kinds of races that affect who gets appointed to lead the DOJ, namely the presidential race, I think this is somewhat overblown.
All this is to say that while I suspect that we would both strongly support significant restrictions on the influence of money in our campaign system, it would be wrong to say that our campaign finance system and the ascendancy of conservative judges eliminates the ability to prosecute white collar crime. With sufficient public anger, and dedicated and courageous prosecutors, there can be successful cases brought against wrongdoers that add some measure of equity to the system.
I’ll toast to that.
The pro-arbitration view is a conservative opinion: that contracts should be as unregulated as possible.
Already there is pressure to remove arbitration from white-collar employment contracts (Uber notably gave into pressure from womens engineering advocacy groups, lead by Susan Fowler).
Lower-wage workers, however, will likely see an expansion of arbitration clauses, as will general consumer contracts. If I understand correctly, all cell phone carriers now require legal rights be waived in place of arbitration in order to get service.