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Law, Ethics, and Divergent Rhetoric

Published online by Cambridge University Press:  23 January 2015

William S. Laufer
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Extract

This response to Professor Hasnas recasts the apparent divergence between the legal and ethical obligations of managers in light of the rhetorical claims and counterclaims that accompany the interaction between regulators and the regulated. It is argued that this divergence is more apparent than real, and that the convincing but often empty rhetorical statements that accompany reforms should be seen in context and largely disregarded. This rhetoric is designed to claim integrity, and reclaim legitimacy with the hope that “burdensome” reforms will be minimized.

Type
Responses to Hasnas
Information
Business Ethics Quarterly , Volume 17 , Issue 3 , July 2007 , pp. 441 - 447
Copyright
Copyright © Business Ethics Quarterly 2007

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References

Notes

1. This commentary draws heavily from William, S. Laufer, Corporate Bodies and Guilty Minds (Chicago: University of Chicago Press, 2006).Google Scholar There I examined the historical stages in the development of corporate criminal law, revealing episodic enforcement and regulatory laxity, with significant strategic positioning by all stakeholders along the way.

2. In Corporate Bodies (p. 3), I conclude that “The history of substantive corporate criminal law reveals a profound ambivalence with the idea of a criminal corporation that is both elementary and seemingly intractable: (a) corporations are aggregates of innocent stakeholders who unfairly suffer from a criminal investigation, indictment, and conviction, but serious consequences must result from corporate deviance, (b) markets encourage corporate risk taking and innovation, but corporations—particularly in certain sectors and industries—require vigilant regulation and faithful compliance, (c) civil and administrative law remedies for organizational deviance already exact a huge toll on corporations, but few doubt the unique role of the criminal law to encourage law abidance or voluntary disclosure of wrongdoing, and (d) the government must support and maintain close ties to the business community, but this may inhibit regulation or make resort to the criminal law problematic.”

3. I use the notion of rhetoric throughout this commentary to reflect words from key stakeholders that are designed, strategically, to prompt more or less regulation; more or less law. The longstanding dance that I speak of reflects the complex, interactive strategies employed by both corporations and their regulators. These strategies were seen as early as the mid-1800s where corporations expressed concerns over the personification of the business enterprise. Prosecutors responded, in kind, with strong public policy arguments that, in the absence of a regulatory state, the criminal law is indispensable. Business organizations responded in ways that resemble, remarkably, their very concerns today. Due diligence, it was claimed, should satisfy the law (Laufer, Corporate Bodies).

4. In the conclusion to this brief commentary I concede the anecdotal evidence of the apparent divergence that concerns Hasnas. That said, systematic evidence of this divergence is lacking. Consider, as just one example, that efforts by the Campbell Collaboration to document any deterrent effect of corporate crime policies was limited by the absence of systematic evidence. The research simply has yet to be conducted. Beyond systematic evidence, the examples used by Hasnas, from Andersen to KPMG, are extraordinary and quite likely far from representative. In the absence of evidence that extends well beyond symbolic prosecutions or notable non-prosecutions of Fortune 100 firms, I conclude that the rhetoric surrounding competing claims by stakeholders may be as important.

5. First Year Report to the President, Corporate Fraud Task Force (Washington, D.C.: Department of Justice, 2003), iii.Google Scholar

6. Ibid.

7. Second Year Report to the President, Corporate Fraud Task Force (Washington, D.C.: Department of Justice, 2004), iii.Google Scholar

8. Ibid, 2.2.

9. Ibid.

10. A cynic would say that the real costs come less from the compromise of ethics than the appearance of ethicality.

11. Interim Report of the Committee on Capital Markets Regulation (2006), xiii, available at http://www.capmktsreg.org/pdfs/11.30Committee_Interim_ReportREV2.pdf.

12. Mapping the Global Capital Markets: The Third Annual Report (New York: McKinsey, 2007),Google Scholar available at http://www.mckinsey.com/mgi/publications/third_annual_report/index.asp.

13. See Laufer, Corporate Bodies, 9—13.

14. See Craig, Haney, “Criminal Justice and Nineteenth-Century Paradigm: The Triumph of Psychological Individualism in the ‘Formative Era,’” Law & Human Behavior 6 (1982): 191;Google ScholarJohn, M. Clark, Social Control of Business (New York: McGraw-Hill, 1939).Google Scholar

15. The general principles of corporate criminal liability that emerged in the late 1800s— principles of vicarious fault—remain the prevailing federal law in the United States. They are, however, the very, very last resort of federal prosecutors. Corporations may be threatened with this strict form of liability, but are rarely prosecuted.

16. See William, S. Laufer and Diana, C. Robertson, “Corporate Ethics as Social Control,” Journal of Business Ethics 16 (1997): 1029.Google Scholar