Thread by @CBHessick

Yesterday, Elizabeth Warren published an op ed in which she makes the case for a piece of legislation that she introduced. That legislation would make it far easier to put company execs in jail.
I appreciate the need to change corporate culture, but this proposal is bad 1/x

First, let me clarify that there are aspects of the bill that seem perfectly fine, if not good policy. In particular, Warren's proposal of certification and for more prosecutorial resources seem like good ideas (though I do wonder if this is where funding is most needed). 2/x

My concern with the bill is the proposal that we impose criminal punishment on executives who are negligent in running their companies. Negligence is an incredibly low standard for criminal punishment. There are very few crimes that impose punishment on this basis. 3/x

A person who is acting negligently does not know that what he or she is doing (or failing to do) is wrong or risky. Negligence means that a reasonable person in that position would have realized that there was a risk of harm. That's just not a very high standard. 4/x

Also, as they say, hindsight is 20/20. And prosecutors are likely to think that defendants should have known that there were risks simply because something bad occurred, not because they would have necessarily recognized the risks themselves if they'd been in that situation. 5/x

Warren compounds the issue by giving an example, not of negligence, but recklessness or willful blindness. That is to say, the mental state she is using in her example is much more serious than the prosecutions that a negligence standard would allow. 6/x

To Warren's credit, she notes that if we had the political will and devoted the resources, then many of the cases that she cares about could be dealt with under current law. 7/x

And while Warren deserves credit for this admission, she also deserves criticism for trying to water down the law to allow for the prosecution of defendants whose behavior is accidental, and thus not very blameworthy at all. 8/x

Some will say that prosecutors will only use this law to go after executives who were wilfully blind or who knew about these problems. That argument is often framed in terms of how the burden of proof makes those cases too difficult to prove, so we need to change the law. 9/x

That's a very dangerous argument, and we need to stop allowing politicians to make it.
We should not change the law to include conduct we don't actually want to punish in order to make it easier for prosecutors to punish people we think do bad things that are hard to prove. 10/x

That argument and those laws essentially delegate the content of the criminal law to prosecutors. And prosecutors will decide what is worthy of punishment using criteria that the public doesn't know about and that can change from case to case and defendant to defendant. 11/x

Prosecutors can even enforce the law as written--to cover truly accidental behavior--and there is nothing potential defendants can do about it.
The fact that Congress was trying to solve a different problem doesn't matter if the text of the statute sweeps in other people too. 12/

Anyway, I've written about the problems caused by these sorts of arguments and these sorts of laws here: papers.ssrn.com/sol3/papers.cf… 13/x

And @hashtagblevin has an extremely insightful and thoughtful critique precisely on these white collar crimes AND on the specific arguments that @ewarren is making here.
I hope that she will reconsider her approach to corporate wrongdoing. 14/x

Here's a link to Ben's critique: papers.ssrn.com/sol3/papers.cf…

In sum, I think that @MiriamBaer18 gets this exactly right & I'm glad she's now on Twitter & can draw my attention to things like this! /end

https://twitter.com/MiriamBaer18/status/1113385320626753536

Addendum:
@hashtagblevin and I wrote up a better version of this argument, which is now live on @Slate
slate.com/news-and-polit…