On overcriminalization

by Walter Olson on December 10, 2009

My Manhattan Institute colleague Marie Gryphon has a new paper out on the subject (“It’s a Crime: Flaws in Federal Statutes That Punish Standard Business Practice”, while James Copland has some comments (“Vague law is bad law”) on the “honest services fraud” cases before the U.S. Supreme Court.


1 save_the_rustbelt 12.10.09 at 3:26 pm

As the old cliche says:

If you are going to rob a bank , don’t buy a gun, buy a bank.

There exists a significant segment of the bar quite anxious to turn white collar crime into acceptable executive practice (free Jeff Skilling, free Jeff Skill!ing!!).

2 William Nuesslein 12.11.09 at 7:42 am

to save_the_rustbelt

The question is not whether white collar guys are above the law as implied in your comment, it is whether we should imprison people because we dislike them. Senator Boxer went after Mr. Skilling because he was, in her view, an arrogant know it all. Logic nd fairness are not Senator Boxer’s strong points and she disgraced herself.

Suppose he was indeed arrogant. Is that a criminal matter? I followed events to some extent and I saw no misdeed by Mr. Skilling. When Mr. Fastow’s deals went bad, Enron had to restate earnings. That enabled creditors to call their loans, and there was a natural run on the bank. Every leveraged firm, like every bank, is at risk of runs. The effect of Mr. Fastow’s bad acts was out of proportion, but that didn’t make Mr. Skilling or Mr. Lay criminals.

When I tell people that Ms. Stewart did not commit insider trading, and was not accused of such, there is astonishment. Her trial and conviction make no sense without some bad act that required covering up.

I hope that Justices Breyer and Roberts get together to cut down on witch trials. This is a rule of law issue and not liberal or conservative. It is a matter of decency.

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