Monday, December 10, 2007
Professor Stuart Green is joining us this week as a guest blogger. He is Louis B. Porterie Professor of Law at the Paul M. Hebert Law Center at Louisiana State University, where he has taught since 1995. His current project is a monograph entitled Property, Crime, and Morals: Theft Law in the Information Age, which will be published by Harvard University Press. Stuart has written extensively on white collar crime issues, and his post is about a subject near and dear to our hearts here are the White Collar Crime Prof Blog: corruption. Welcome, Stuart, and thanks for joining us.
My thanks to Peter Henning and Ellen Podgor for inviting me to serve as a guest blogger this week at White Collar Crime Prof Blog. I am a professor of law at Louisiana State University and author of Lying, Cheating, and Stealing: A Moral Theory of White Collar Crime (OUP, 2006), now available in paperback.
I plan to spend at least some of the week talking about bribery. The last several weeks have brought a steady stream of such cases in the news: That of Dickie Scruggs, the big time Mississippi torts lawyer who has been indicted on charges that he offered $50,000 to sway a local judge in a relatively small fee dispute, has already received some excellent discussion on this site. Reports out of Iraq indicate that widespread theft and bribery are hindering the country’s ability to achieve political and social stability. And Pete Kott, former Speaker of the Alaska House, was sentenced to six years in a federal prison for accepting $9,000 in bribes from the founder of an oil field services company, in a case that may well end up implicating Alaska Senator Ted Stevens.
Bribery is an elusive crime. Particularly in the United States, where the political process is so thoroughly permeated by private contributions and log-rolling, it can be hard to distinguish between what’s truly corrupt and what’s not. The British, though less encumbered with the problem of political contributions, have nevertheless struggled to make sense of bribery, and the Law Commission of England and Wales has just issued a major new consultation paper calling for reform in this area. (Full disclosure: I served as a consultant on the report, writing an Appendix on the law of bribery in the U.S.) The study recommends a complete overhaul of the law of bribery.
Among its most striking recommendation is that bribery in the private sector be treated on the same terms as bribery in the public sector. The study offers both moral and instrumental reasons for abrogating the traditional distinction. It views the moral wrong of bribery as involving the "breach of a legal or equitable duty that involves a betrayal of a relation of trust or a breach of a duty to act impartially or in the best interests of another." It says that "[w]here a person breaches such a duty in return for the conferral or promise of an advantage from another, both should be guilty of bribery irrespective of whether the recipient is a public official." ¶1.16. As for practical reasons, according to the report, "the main objection to having separate offences is that it is very difficult to define with sufficient clarity the distinction between public sector and private sector functions. Increasingly, what were formerly public sector functions are sub-contracted out to the private companies while public bodies now frequently form joint ventures with private companies." ¶1.14.
Both propositions seem to me problematic. First, it could be argued that government officials who accept bribes breach a duty to the public good that is more significant than the duty breached by employees of a private firm. Second, while it is true that the lines between public and private functions has become increasingly blurred in recent years, it may make more sense simply to err on the side of treating some quasi-private functions as public (as in the case of U.S. federal program bribery) without going so far as to treat all private functions as public. Those, at least are a couple of my initial reactions to the report. I’ll have more to say about it tomorrow.