Tuesday, April 05, 2005

Technocratic: Moral Punishment

FC worries about how our is giving a pass to corporate giants because of their economic importance

"There is an increased reluctance to bring criminal charges that ultimately have the effect of killing a company that otherwise employs a lot of innocent people and has lots of value to it," says Michael Gass, an expert on SEC enforcement at Palmer & Dodge, a Boston law firm. "Instead, there is an increased focus on the individuals responsible."

This disturbs some I’m sure, but it’s how I really wish the rest of us were able to think about punishment. In this case, our government/public opinion/enforcement has problems in that it needs to deter crime, but harm upon the agents responsible (the company) creates a lot of arm overall (such as job losses for everyone in the company). And we don’t want to cause harm to those many people.

Contrast with our punishment decision-making for individuals who commit crimes. Our society wants to deter future crime, and also relishes causing the offendee pain. I know the importance of deterrence (and also prevention simply by having them locked away), but our desire or willingness to cause pain to these people does not make me happy. We’re all sinners, or automatons that lack free will, or sources of hedons, or whatever. Causing pain to someone is a bad thing, a negative, a cost, independent of what actions they have taken. It’s worth it perhaps to further other practical goals (deterrence), but still a cost not a benefit. And while I think most moral philosophers in our country would pay lip service to that, it is certainly something our justice system has trouble enacting.

In this corporate world, we can understand that. We know we need to deter companies from doing evil things, but we’re also sad at the prospect of thousands of people losing their jobs. From this we determine more valid punishments, than we do from bloodlust.

Of course I recognize that in practice, our enforcement against corporations is riddled with cronyism and delays, or at least appears that way to the public (the most important part of any deterrent). I also understand the temptation to focus all the blame for wrongdoing on individuals, but FC rightly points out how easy it is to spread the blame to the whole company, both legally and logistically.


At 3:00 PM, Anonymous little_e- said...

it seems to me that if laws were consistently enforced (ie, if you do wrong, you will be caught, and you will be punished, but if you are innocent, you won't be) then we would have a lot fewer problems. For example, just look at the enormous legal community in our country devoted to suing people. If the outcomes of court cases were relatively clear and easy to predict because of consistent rulings, then I think we would see a lot fewer cases actually go to court (although most cases do settle, anyway) and there would be less need for lawyers.

if we had clear, equitable, and consistently enforceable laws, i think we'd see a lot less foul-play among businesses. unfortunately, law is abstruse and enforced differently in different parts of the country... which means that unscrupulous business men have a fairly high incentive to cheat because they know the chance of being caught is relatively low.

Likewise, I think that consistent enforcement, while it might temporarily hurt a few companies, would ultimately make the rest of the companies shape up and be more honest and transparent.

... just a thought on the subway, anyway.

At 8:13 AM, Blogger Rousseau said...

You live with a law-student and don't believe our laws are extremely complex out of necessity? Either you are more informed than I am, or extremely ill-informed given your surroundings.

Uncertainty in resolution of court cases certainly benefits the rich (ie, less concave for time and money, more risk friendly) which is unfortunate. But I doubt purposeful, and I'm not sure I can imagine systems that can't be easily gamed otherwise, or aren't very unfair in their own ways.

At 2:40 PM, Anonymous little_e- said...

Living with a law student is precisely one of the reasons why i think our law is overly complex, because he'll occasionally read shit out loud to me because it's so atroicious/complexly written. (and, to be honest, i have more respect for the legal profession and law in general than he does.)

The complexity of the system at this point is in part because of the law. We've had over 200 years to build up laws and, well, legal gunk, in a sense, and the pipes just don't work terribly well.

at this point most legal reforms seem more like pouring draino down a pipe or changing the washers than actually ripping out the plumbing and putting in a new set. Obviously we can't just rip out the plumbing (any more than we can actually do away with the constitution.)

at this point complex laws breed complex situations which breed even more complex laws... on the other hand, I have a great appreciation for the extent to which our laws *do* function and do manage to regulate a society which would be extremely complex and weird no matter how it had formed. But corporate, tax, and other such laws are horribly complex, badly enforced, and encourage people to manipulate and game the system in ways which priveledge the wealthy...

if the chances of anyone even understanding what you're doing are low, then the chances of people catching you are low, and the incentive to cheat gets higher...

At 3:02 PM, Blogger Rousseau said...

I meant, I'm surprised he hasn't bothered to try defending the complexity of the law to you.

Ie, there's a _reason_ such complexity exists, and it's not just pork or vestigal evolution.

Also, complexity is not necessarily correlated with "uncertain outcome". Yes people don't know the complex technical statutes when they exist. But what about when there aren't extremely specific statutes? The most simplistically written laws tend to be "act in bad faith" about something or other things of "when it is clear the person had ill intent or meant to cause harm". Proving cases along these lines are extremely uncertain and expensive, and I certainly wouldn't want to go up against a giant corporation trying to prove that someone specifically knew what they were doing would give me cancer.

So instead we have explicit statutes about what the line that people can't cross is. Where it is, and how much offenders should be punished. Which makes trying the court cases easier.

At 5:08 PM, Anonymous little_e- said...

in some cases there's a reason. I'm well aware of that. In others, though, it's clearly pork.


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