Wednesday, April 9, 2014
A wide range of commentators have raked through the ruins of the 2008 financial collapse confident that there were significant criminal prosecutions to bring against individuals and that the Justice Department should be faulted for its failure to have brought them. Their confidence that blockbuster criminal cases could have been made and were not rests on shaky grounds however. So too does their faith that the hunting of heads is a socially productive response to the collapse. All too frequently missing from current debates has been sustained engagement with realities of federal criminal law enforcement. The goal of this essay is to bring somewhat prosaic considerations of law and institutional capacity back into the conversation. While I offer little in the way of regulatory or architectural reform, I simply seek to clear away broad rhetoric that can only impede such efforts.