Tuesday, July 31, 2007
The Southeast Association of Law Schools (SEALS) included a panel discussion titled, White Collar Crime in the Post-Enron Era: Substance and Scholarship, with Joan Hemingway (Tennessee) moderating the panel.
The first speaker, John Hasnas (Georgetown Business School), spoke of the existing "Commander & Control" Approach and how it is detrimental to the corporate structure in creating an adversarial relationship among the parties. Hasnas called for a "Procedural Justice" approach. He noted how punishing the innocent is not justified for retribution standards and this occurs under the existing model.
Lisa Nicholson (University of Louisville, Louis D. Brandeis School of Law), started by discussing the growing debate between those who think the existing punishment is not enough and those who think Congress has gone too far. She advocated for removing the economic incentive of the criminal conduct and proposed use of asset forfeiture to accomplish this.
Chris Slobogin (U of Florida) focused on the "law of counts," looking at the overlapping situation ("redundant charges") when prosecutors charge different crimes for the same conduct. Looking at the Martha Stewart case he noted the deficiencies of redundant charging.
Lisa Fairfax (Maryland) looked at outside director liability. She noted how these individals can be an integral role in the fraud in their failure to provide proper oversight. But that said, she did not advance making this criminal liability.