1 The Meaning of White-Collar Crime Use of the term ‘white-collar crime’ to refer to some category of illegal, or at least deviant, conduct is now a common feature of our linguistic landscape. Sociologists and criminologists have been using it for more than 60 years. The majority of American law schools have a course in the subject. Journalists and politicians refer to it regularly. Law enforcement agencies, prosecutors, and defense attorneys all claim expertise in the area. And the term is increasingly being used outside the United States, both in English and in translation. Nevertheless, the meaning of ‘white-collar crime,’ like that of other abstract terms in legal, social science, and philosophical discourse (think, for example, of ‘coercion,’ ‘violence,’ and ‘victim’), is deeply contested.
1 Deﬁnitions vary both within and across disciplines and linguistic practices. White-collar crime scholars have sometimes sought to ﬁnd an agreed-upon meaning of the term; other times, they have looked for substitutes. But none of these efforts has been successful: whatever deﬁnitions have been offered have failed to ﬁnd general acceptance; whatever alternatives have been suggested have proved inadequate. Despite its fundamental awkwardness, the term ‘white-collar crime’ is now so deeply embedded within our legal, moral, and social vocabularies that it could hardly be abandoned. The term persists and proliferates not so much in spite of its lack of deﬁnitional precision, but because of it. Speakers attribute to it those meanings that correspond to their own particular analytical or ideological concerns. In this section, I want to explore some of these various meanings and explain how I intend to use the term in this book.
1. Three Critical Issues in Defining ‘White-Collar Crime’ One difference between ‘white-collar crime’ and other contested concepts in law, the humanities, and the social sciences is that its origins are so easily known and so widely acknowledged. The term was ﬁrst used only 65 years
1 Kip Schlegel has compared the controversy over the meaning of ‘white-collar crime’ to that over the meaning of ‘privacy.’ ‘Recalling Status, Power and Respectibility [sic] in the Study of White-Collar Crime’, in Proceedings of the Academic Workshop, Deﬁnitional Dilemma: Can and Should There be a Universal Deﬁnition of White-Collar Crime? (Richmond, Virginia: National White-Collar Crime Center, 1996) 98. ago by Edwin Sutherland, the most inﬂuential American criminologist of his day, in a presidential address to the American Sociological Association.
2 Sutherland was famously vague and inconsistent in saying exactly what the term should mean. But even if he had been precise and consistent in his usage, it seems likely that the term still would have generated uncertainty and misunderstanding among other users of the term. The concept that Sutherland was the ﬁrst to deﬁne is one that is so inherently complex and multi-faceted that it seems unlikely that one single deﬁnition could ever prevail. The story of how the term ‘white-collar crime’ has been used in the social sciences has been told on many occasions.
3 Rather than repeating that history here, I would like to focus on three critical issues that have arisen in the battle over the meaning of white-collar crime: (1) should the term refer only to activity that is actually criminal, or also to other forms of non-criminal ‘deviance’?; (2) should the term refer to behavior (whether criminal or not) engaged in exclusively or primarily by particular kinds of actors, such as those who occupy certain jobs or have a high socio-economic status; or should it refer instead to some particular kinds of acts?; and (3) assuming that the term should refer to a particular category of criminal acts or other deviant behavior (rather than to actors), what factors should determine which such acts will be included?
Crime vs Deviance To lawyers, the term ‘crime’ denotes a legal category. It refers to particular kinds of conduct that our legal institutions recognize as ‘criminal.’ Such conduct must be deﬁned in a particular manner, employing certain characteristic concepts such as actus reus and mens rea; it must have a certain ‘public’ character in the sense that it is a wrong that concerns the public as a whole, or is committed against the public’s deﬁning values; criminal charges are usually brought in the name of the government or ‘the People’; the question whether a crime has been committed must be adjudicated in a particular manner, with various actors playing distinctive roles, employing distinctive procedures and burdens of proof, and recognizing distinctive procedural rights; and it must 2 Edwin H Sutherland, ‘White-Collar Criminality’ (1940) 5 American Sociological Review 1, reprinted in Gilbert Geis and Robert F Meier (eds.), White-Collar Crime (New York: Free Press, 1977); see also Edwin H Sutherland, White-Collar Crime: The Uncut Version (New Haven: Yale University Press, 1983). 3 See, eg Gilbert Geis, ‘White-Collar Crime: What Is It?,’ in Kip Schlegel and David Weisburd (eds.), White-Collar Crime Reconsidered (Boston: Northeastern University Press, 1992) 31–52; David Weisburd et al., Crimes of the Middle Classes: White-Collar Offenders in the Federal Courts (New Haven: Yale University Press, 1991) 3–9; Stanton Wheeler and Dan Kahan, ‘White-Collar Crime: History of an Idea’, in Joshua Dressler (ed.), Encyclopedia of Crime & Justice (2nd edn., New York: Macmillan, 2002), vol. 4, at 1672; Proceedings of the Academic Workshop, Deﬁnitional Dilemma: Can and Should There Be a Universal Deﬁnition of White-Collar Crime? (Richmond, Virginia: National White-Collar Crime Center, 1996). entail certain characteristic forms of punishment.4 To lawyers, therefore, it seems obvious that when one talks about ‘white-collar’ crime, one should be talking about some subcategory of conduct that reﬂects such criminal law-like characteristics.
To social scientists, this point is less clear. Sociologists and criminologists are concerned less with legal labels and categories than with describing patterns of behavior, the causes of such behavior, and society’s attitudes towards it. Thus, for Sutherland and many of his fellow sociologists, white-collar crime is not ‘crime’ in the legal sense of the term.5 At the time he was writing, much of the activity with which he was concerned—including restraint of trade, violation of patents, unfair labor practices, and adulteration or misbranding of food and drugs—either was not subject to criminal sanctions at all, or, if it was, was rarely prosecuted as such. Indeed, this was precisely Sutherland’s point: a good deal of conduct that is at least as, or even more, harmful or wrongful than what has traditionally been viewed as criminal is subject to a range of procedures and penalties that differ from those used for (and is largely excluded from ofﬁcial statistics on) traditional crime. This is not to say, however, that everyone has agreed with Sutherland’s approach to deﬁning white-collar crime. Indeed, there have been two distinct responses to the confusion caused by including in the notion of white-collar ‘crime’ conduct that is not regarded as criminal by the law. The ﬁrst is simply to insist, as Paul Tappan and others have done, that only conduct regarded as criminal by the law should be included in the notion of white-collar crime.6 The second is to set aside the term ‘white-collar crime’ and instead use terms such as ‘elite deviance’ to refer not only to actual crimes committed by the elite but also to deviant activities of the elite that do not violate the law.7 From a sociological perspective, this second alternative makes some sense. Much of the conduct we will be dealing with in this book could be treated either as: (1) a crime (whether a serious felony or a relatively minor misdemeanor); (2) a non-criminal violation of law (eg a tort, breach of contract, or statutory violation)8; or (3) a merely ‘deviant,’ aggressive, or anti-social act which is violative of some informal norm but is not contrary to either criminal or civil law. In light of such overlaps, one can easily imagine a sociological 4 cf Antony Duff, ‘Theories of Criminal Law’, in Edward N Zalta (ed.), Stanford Encyclopedia of Philosophy, http://plato.stanford.edu/entries/criminal-law/ accessed 22 August 2005. 5 Sutherland acknowledged this point in his essay, ‘Is “White-Collar Crime” Crime?’ (1945) 10 American Sociological Review 132. 6 Paul W Tappan, ‘Who is the Criminal?’ (1947) 12 American Sociological Review 96; see also Robert G Caldwell, ‘A Re-Examination of the Concept of White-Collar Crime’, in Gilbert Geis (ed.), White-Collar Criminal: The Offender in Business and the Professions (New York: Atherton Press, 1968); Herbert Edelhertz, The Nature, Impact and Prosecution of White-Collar Crime (Washington, DC: National Institute of Law Enforcement and Criminal Justice, 1970). 7 See, eg David Simon, Elite Deviance (7th edn., Boston: Allyn & Bacon, 2002). 8 See John E Conklin, Illegal But Not Criminal: Business Crime in America (Englewood Cliffs, NJ: Prentice Hall, 1977). This point is discussed further below ch. 2, n 7. study in which the distinction between deviant activity that is criminal and that which is not would seem arbitrary.
Moreover, to the extent that one is concerned with reforming the criminal law—so that currently non-criminalized behavior is made criminal, or currently criminalized behavior is decriminalized—there is much to be said for a general term that refers to both kinds of conduct. Indeed, there is a signiﬁcant polemical or reformist strain that runs through much of the sociological literature on white-collar crime.9 Although Sutherland himself claimed that his theory was ‘for the purpose of developing the theories of criminal behavior, not for the purpose of muckraking or reforming anything except criminology,’10 his real motives surely included the reform of the legal system. To be sure, many students of white-collar crime cannot help but be incensed by the fact that such conduct, even when apparently more harmful than traditional street crime, has traditionally been dealt with more leniently by legislatures and courts. From the perspective of law and legal theory, however, the term ‘elite deviance’ is highly problematic. The discipline of criminal law is deﬁned by what is criminal. A wide range of critically important procedural questions turn on whether conduct alleged is violative of the criminal law. To replace the concept of white-collar crime with the concept of deviant behavior is thus to blur a distinction that, at least in legal discourse, is foundational.
Moreover, not only is there deviant behavior that is not criminalized, there is also criminal activity that is not generally regarded as deviant. For example, as we shall see below, a good deal of regulatory crime involves so-called malum prohibitum conduct, which is not wrongful prior to its legal regulation, but becomes wrongful (and thus, it is argued, legitimately criminalizable) in virtue of its being regulated. And there are other forms of conduct that may well be regarded as deviant in one social setting (eg courtside at Wimbledon), but not in another (say, on the trading ﬂoor of the Chicago Board of Trade).
A ﬁnal problem with substituting the term ‘elite deviance’ for ‘white-collar crime’ is that much white-collar crime is not in fact committed by elites. For example, many people would consider insider trading to be a quintessentially white-collar offense. Yet, as one scholar has pointed out, the Supreme Court ﬁrst addressed the subject in a case in which the defendant was not a high-level corporate executive at all, but rather a blue collar ‘markup man’ for a printing press.11 Indeed, it seems obvious that many cases of what I shall provisionally assume to be white-collar crimes—such as perjury, obstruction of justice, fraud, bribery, and tax fraud—frequently involve defendants who are not, in any meaningful sense of the term, elite. 9 Susan P Shapiro, ‘The New Moral Entrepeneurs: Corporate Crime Crusaders’ (1983) 12 Contemporary Sociology 304 (criticizing this tendency). 10 Sutherland, ‘White-Collar Criminality’ (n 2 above, at 1).
11 J Kelly Strader, ‘The Judicial Politics of White-Collar Crime’ (1999) 50 Hastings Law Journal 1199, 1207 (discussing United States v Chiarella 455 US 222 (1980)). Actors vs Acts To refer to a crime as ‘white-collar’ is to draw attention to the characteristics of the person (or entity) that committed it. Indeed, it was the qualities of the offender, rather than those of the offense, that was the main focus of Sutherland’s critique. Sutherland sought to question the then-prevalent theory that associated crime with the activities of the lower classes and emphasized poverty as its principal cause. He argued that, because there is a signiﬁcant category of crimes that are committed by persons of wealth, ‘respectability,’ and social status, poverty cannot be viewed as the sole, or main, cause of crime.
12 And, in fact, recent cases involving the likes of super-wealthy alleged white-collar criminals such as Martha Stewart, Kenneth Lay, Bernard Ebbers, Richard Scrushy, and Dennis Kozlowski seem to demonstrate the truth of such an assertion.
From the perspective of the criminal law, however, such an approach is once again problematic. Deeply rooted equal protection-type norms forbid us from distinguishing among offenders on the basis of wealth, occupation, race, gender, ethnicity, or other personal characteristics. To be sure, there are special immunity rules that apply to certain kinds of actors performing certain kinds of governmental functions (eg prosecutors). But outside of such narrow exceptions, the law is not ordinarily permitted to take account of a defendant’s social status in determining criminal liability. Nor, ordinarily, does legal theory.
One alternative is to change the focus of the inquiry from social class to occupation. Thus, Marshall Clinard and Richard Quinney have suggested that the term ‘white-collar crime’ be replaced by two constitutive terms: ‘corporate crime’ and ‘occupational crime.’13 The ﬁrst category is meant to include offenses committed by corporations and their ofﬁcials for the beneﬁt of the corporation.14 The second category entails crimes that are committed ‘in the course of activity in a legitimate occupation’ and is meant to apply to offenses involving persons at all levels of the social structure. As such, occupational crimes can be committed by employees against employers (as in the case of embezzlement), employers against employees (as in the case of workplace safety violations), and by those who provide services and goods to the public (eg consumer fraud, health care fraud, procurement fraud, environmental pollution).
15 In somewhat more precise terminology, we might say that, under this approach, white-collar crime should be understood as requiring, as an element, that the offender be: (1) a corporate entity or ofﬁcer of such entity
12 Sutherland (n 2, above). 13 Marshall B Clinard and Richard Quinney, Criminal Behavior Systems: A Typology (New York: Holt, Rinehart & Winston, 1967, 1973); see also Gilbert Geis, ‘Toward a Delineation of White-Collar Offenses’ (1962) 32 Sociological Inquiry 160. 14 15 Geis (n 13 above, at 189). Geis (n 3 above, at 39–40). acting in her capacity as such; or (2) performing a particular job or serving in a particular position at the time she committed the offense. And, indeed, such an approach is not at all foreign to the criminal law. For example, one cannot commit the offense of receiving a bribe under the principal federal bribery law unless one is performing an act as a member of Congress, a juror, a witness, or ‘an ofﬁcer or employee or person acting on behalf of the United States, or any department, agency or branch of Government thereof.’
16 Such an approach would likely forestall the anomaly of having to include under the category of white-collar crime cases in which a person of high social status and wealth commits a presumptively non-white-collar crime such as murder, rape, or possession of a controlled substance. But it would at the same time create a host of other problems. Much of what could presumably be included within the category of ‘occupational’ crime—including theft of ofﬁce equipment, workplace assaults, police brutality, and serial killings of patients by doctors and nurses—would not ordinarily be regarded as white-collar crime.
17 Even more problematic is the fact that a great many white-collar crimes have nothing at all do with either corporations or a defendant’s occupation. Indeed, perjury, obstruction of justice, the offering of bribes, extortion, false statements, and tax evasion are only rarely committed by employees against employers, employers against employees, or by those who provide goods and services to the public; and they only rarely involve corporations.18 In short, there is a vast range of presumptively white-collar crime that falls outside the categories of both corporate and occupational crime. 2. Which Offenses Should be Regarded as White-Collar Crimes? In the remainder of this book, I shall assume that, at least in the limited context of law and legal theory, the term ‘white-collar crime’ should refer neither to non-criminalized, deviant behavior, nor to crimes committed by offenders holding particular kinds of jobs or enjoying a particular social 16 18 USC §201(a)(1). See ch. 16 below.
17 Here, it should be pointed out that there is a range of ways in which the term ‘occupational crime’ has been used. For example, David O Friedrichs has suggested that the term should be restricted to illegal and unethical activities committed for individual ﬁnancial gain in the context of a legitimate occupation—thereby excluding crimes such as workplace assault. ‘Occupational Crime, Occupational Deviance, and Workplace Crime: Sorting Out the Difference’ (2002) 2 Criminal Justice 243. Others, such as Gary Green, have used the term more broadly. Occupational Crime (Chicago: Nelson-Hall Publishers, 1997). My point is simply that the term is a poor all-purpose substitute for ‘white-collar crime.’ 18 Cf Herbert Edelhertz, The Nature, Impact and Prosecution of White-Collar Crime (Washington, DC: National Institute of Law Enforcement and Criminal Justice, 1970) (arguing that we ought not to exclude from the deﬁnition of white-collar crime offenses such as tax evasion, receiving illegal social security payments, and consumer fraud). status. Instead, I shall use ‘white-collar crime’ to refer exclusively to a category of criminal offenses that reﬂects some particular group of legal and moral characteristics.
Not surprisingly, this is the sort of approach taken by various lawyers and law enforcement ofﬁcials interested in formulating a standard deﬁnition of white-collar crime. For example, in 1970, US Department of Justice ofﬁcial Herbert Edlehertz described white-collar crime as ‘an illegal act or series of illegal acts committed by nonphysical means and by concealment or guile, to obtain money or property, or to obtain business advantage.’19 Nineteen years later, the FBI deﬁned white-collar crime as ‘those illegal acts which are characterized by deceit, concealment, or violation of trust and which are not dependent upon the application or threat of physical force or violence. Individuals and organizations commit these acts to obtain money, property, or services; to avoid the payment or loss of money or services; or to secure personal or business advantage.’
20 From the perspective of legal analysis, an act-focused deﬁnitional approach such as these is much preferable to the actor-focused approach discussed above.21 Nevertheless, each of the deﬁnitions offered presents signiﬁcant problems: ﬁrst, it is unclear what it means to commit a crime by ‘nonphysical’ means; many criminal law theorists would argue that every crime commission requires a physical act.22 Nor is it even clear what it means for a crime to be ‘nonviolent.’23 For example, would the release of toxic chemicals into a public water source in violation of the Clean Water Act, or the sale of adulterated drugs in violation of the Federal Food, Drug, and Cosmetic Act, qualify as such?
19 Ibid 3 (emphasis omitted). 20 US Department of Justice, Federal Bureau of Investigation, White-Collar Crime: A Report to the Public (Washington, DC: US Department of Justice, 1989) 3. The inﬂuential formulation offered by the US Department of Justice, Bureau of Justice Statistics seem to combine both act- and actor-based elements. See Bureau of Justice Statistics, US Department of Justice, Dictionary of Criminal Justice Data Terminology (2nd ed., Washington, DC, 1981) 215 (deﬁning ‘white-collar crime’ as ‘[n]onviolent crime for ﬁnancial gain committed by means of deception by persons whose occupational status is entrepreneurial, professional or semi-professional and utilizing their special occupational skills and opportunities; also, nonviolent crimes for ﬁnancial gain utilizing deception and committed by anyone having special technical and professional knowledge of business and government, irrespective of the person’s occupation’).
21 Cf Susan P Shapiro, ‘Collaring the Crime, Not the Criminal: Reconsidering the Concept of White-Collar Crime’ (1990) 55 American Sociological Review 346 (arguing for act-based approach).
22 Although it should be noted that there is a debate on this question. See, eg Douglas Husak, ‘Does Criminal Liability Require an Act?,’ in RA Duff (ed.) Philosophy and the Criminal Law: Principle and Critique (Cambridge: CUP, 1998) 60; R A Duff, Intention, Agency and Criminal Liability: Philosophy of Action and the Criminal Law (Oxford: Blackwell, 1990).
23 ‘Violence,’ of course, is another famously contested term. See, eg CAJ Coady, ‘The Idea of Violence’ (1986) 3 Journal of Applied Philosophy 3; Robert Paul Wolff, ‘On Violence’ (1969) 66 Journal of Philosophy 601. Cf Leocal v Ashcroft, 125 S Ct 377 (2004) (interpreting deﬁnition of term ‘crime of violence’ as used in 18 USC §16(a)).
Secondly, there is virtually no explanation for why the deﬁnition of white-collar crime should be limited to those offenses committed for the purpose of obtaining ‘money,’ ‘property,’ or ‘services,’ or to secure ‘ﬁnancial gain’ or ‘business advantage.’ To the extent that such an approach would exclude many cases of presumptively core white-collar offenses such as perjury, bribe giving, and obstruction of justice, and at the same time include presumptively non-white-collar offenses such as larceny, robbery, and embezzlement, it would seem to require some justiﬁcation. Indeed, this may explain why some scholars now prefer the term ‘economic’ or ‘business’ crime to ‘white-collar crime.’
24 Thirdly, and even more problematic, is the unexplained use of the terms ‘deceit,’ ‘concealment,’ ‘guile,’ and ‘violation of trust.’ Even if the meanings of such terms were not highly contested (as they are), one could not help but wonder whether this limited list of moral wrongs would fully capture the moral content of the range of presumptively white-collar offenses that will be discussed in this book.
Legal Education and Scholarship Within the last generation, white-collar crime has developed into a standard subject in the curriculum of American law schools. There are now at least ﬁve major casebooks, two hornbooks, an anthology, an annual student-edited law review survey, and scores of law school courses expressly devoted to the subject.25 Indeed, white-collar, federal, business, and environmental crime
24 See, eg Harry First, Business Crime: Cases and Materials (Westbury, NY: Foundation Press, 1990); Frank O Bowman, III, ‘Coping With “Loss”: A Re-Examination of Sentencing Federal Economic Crimes Under the Guidelines’ (1998) 51 Vanderbilt Law Review 461; Jayne W Barnard, ‘Allocution for Victims of Economic Crimes’ (2001) 77 Notre Dame Law Review 39. In my view, the problem with the term ‘economic’ crime is that it fails to capture the crucial moral distinction between presumptively white-collar crimes, such as fraud, and ordinary street crimes, such as larceny. For a discussion of this distinction, see Stuart P Green, ‘Deceit and the Classiﬁcation of Crimes: Federal Rule of Evidence 609(a)(2) and the Origins of Crimen Falsi’ (2000) 90 Journal of Criminal Law & Criminology 1087, 1093–94 & n 21. For a contrary view, see Bowman, above, at 490–97.
25 See Kathleen Brickey, Corporate and White-Collar Crime: Cases and Materials (3rd edn., New York: Aspen Publishers, 2002); Pamela H Bucy, White-Collar Crime: Cases and Materials (2nd edn., St. Paul, Minnesota: West Publishing, 1998); Jerold H Israel et al., White-Collar Crime: Law and Practice (2nd edn., St. Paul, Minnesota: West Publishing, 2003); Julie R O’Sullivan, Federal White-Collar Crime: Cases and Materials (2nd edn., St. Paul, Minnesota: West Publishing, 2003); J Kelly Strader and Sandra Jordan, White-Collar Crime: Cases, Materials and Problems (Newark, NJ: LexisNexis, 2005); see also Leonard Orland, Corporate and White-Collar Crime: An Anthology (Cincinnati, Ohio: Anderson Publishing, 1995); Ellen S Podgor and Jerold H Israel, White-Collar Crime in a Nutshell (2nd edn., St. Paul, Minnesota: West Publishing, 1997); J Kelly Strader, Understanding White-Collar Crime (Newark, NJ: LexisNexis, 2002). There are also several casebooks dealing with ‘federal criminal law’ or ‘business crime’ that cover many of the same topics, e.g. Norman Abrams and Sara Sun Beale, Federal Criminal Law and Its Enforcement (3rd edn., St. Paul, Minnesota: West Publishing, 2000). The annual student-written white-collar crime survey of the American Criminal Law Review deals with antitrust, computer crimes, corporate criminal liability, employment-related crimes, false are among the most rapidly proliferating subjects in the American law school curriculum.
26 Legal academics are clearly less inclined than their social science counterparts to think of white-collar crime in terms of either offender characteristics or mere deviance. Almost all law school courses and texts in white-collar crime deal with the speciﬁc offenses of mail and wire fraud, perjury, obstruction of justice, conspiracy, and the Racketeer Inﬂuenced, and Corrupt Organizations Act (‘RICO’) as well as with the general principles of corporate criminality. But, beyond this, there is little consensus: many courses emphasize white-collar crime as a body of substantive law, while others focus on the procedures associated with its prosecution and defense, particularly in the federal courts. Some, but by no means all, of the courses emphasize constitutional issues raised by the supposedly increasing federalization of criminal law. Others cover grand jury and forfeiture proceedings. Still others deal with speciﬁc offenses such as insider trading and other forms of securities fraud, computer crimes, bribery, gratuities, money laundering, environmental and other regulatory crimes, extortion, false claims, bank fraud, and tax crimes.
In any event, given the tortuous deﬁnitional history of white-collar crime in the social sciences, it is surprising that legal academics have expended relatively little effort in deﬁning the term or explaining the criteria upon which speciﬁc offenses are included in a given curriculum. Most of the textbooks and law review literature deal with the deﬁnitional question only brieﬂy,27 and some not at all.28 Rather, there seems to be an assumption that the subject matter of white-collar criminal law is somehow self-deﬁning.
3. Salvaging White-Collar Crime as a Concept of Law and Legal Theory If one were starting from scratch, ‘white-collar crime’ is surely not the term one would choose to describe the concept that is to be considered in this book. The term was vague and imprecise when ﬁrst conceived, and seems at least as much so today. Frequently, it means exactly the opposite of what it says, as claims, false statements, criminal conﬂicts of interest, conspiracy, food and drug violations, ﬁnancial institutions fraud, foreign corrupt practices, health care fraud, intellectual property crimes, mail and wire fraud, money laundering, obstruction of justice perjury, RICO, securities fraud, and tax violations. 26 Deborah Jones Merritt and Jennifer Cihon, ‘New Course Offerings in the Upper-Level Curriculum: Report of an AALS Survey’ (1997) 47 Journal of Legal Education 524. 27 See Israel, et al. (n 25 above, at 1–9); O’Sullivan (n 25 above, at 1–7); Strader, Understanding White-Collar Crime (n 25 above, at 1–3); Podgor (n 25 above, at 1–3). 28 See, eg Brickey (n 25 above); Dan M Kahan and Eric A Posner, ‘Shaming White-Collar Criminals: A Proposal for Reform of the Federal Sentencing Guidelines’ (1999) 42 Journal of Law & Economics 365; Kenneth Mann et al., ‘Sentencing the White-Collar Offender’ (1980) 19 American Criminal Law Review 479, 481 & n 8. when it is used to refer to merely deviant, non-criminalized activity. Sometimes it has been used overinclusively, such as when it refers to RICO, conspiracy, and corporate homicide. Other times it has been used under-inclusively, as when it excludes various regulatory crimes and non-businessrelated offenses such as perjury and obstruction of justice. It has been used to refer to characteristics of persons rather than of offenses in a manner that is unacceptable within the framework of equal protection norms. Its ideological overtones are signiﬁcant and, in the pursuit of objective scientiﬁc and legal analysis, unforgivable. And although it was coined only 60 years ago, the point at which all parties might agree on a deﬁnition has long since passed.
In light of all these problems, is there any justiﬁcation for the term’s continued use? It would be presumptuous of me, an academic lawyer, to offer advice to social scientists, law enforcement ofﬁcials, practicing attorneys, social activists, or journalists, among others, on whether and, if so, how, the term should be used. From the perspective of moral and legal theory, however, it seems to me that—in the absence of any viable alternative, and in light of its powerful cultural resonances—the term ‘white-collar crime’ is worth preserving, provided that certain features are understood, and various caveats observed. White-Collar Crime as a Family Resemblance Category
We would do better to think of the term ‘white-collar crime’ as referring to a set of offenses connected by a series of what philosophers call ‘family resemblances,’ rather than as susceptible to deﬁnition through a precise set of necessary and sufﬁcient conditions. As linguist George Lakoff has put it, under the traditional, Aristotelian, or classical approach to classiﬁcation, categories are ‘assumed to be abstract containers, with things either inside or outside the category. Things [are] assumed to be in the same category if and only if they ha[ve] certain properties in common. And the properties they ha[ve] in common [are] taken as deﬁning the category.’29 Under the classical model, then, categories are thought to have clear boundaries and be deﬁned by common properties. Such an approach seems appropriate, at least as an ideal, in the context of deﬁning criminal offenses. We want to know, to the extent possible, precisely which acts will fall within the category of, say, ‘murder,’ ‘rape,’ or ‘theft,’ and which will not.
But many concepts in the social sciences, the humanities, the arts, and in our daily lives are simply not susceptible to such precise in-or-out deﬁnition. Such concepts have ‘fuzzy’ boundaries that do not ﬁt into the classical model. Wittgenstein gives the example of the category ‘game’30: Some games involve competition and strategizing (like chess and capture-the-ﬂag). Others involve 29 George Lakoff, Women, Fire, and Dangerous Things (Chicago: University of Chicago Press, 1987) 6. 30 Ludwig Wittgenstein, Philosophical Investigations (GEM Anscombe trans.) (3rd edn., Oxford: Basil Blackwell, 1968) 66–71. merely amusement (like ring-around-the-rosy). With categories of this sort, it seems impossible to ﬁnd any single collection of properties that all members (and only those members) share. Instead, categories like ‘game’ seem to consist of a collection of members who share what Wittgenstein called ‘family resemblances.’ Just as family members may resemble each other in a variety of different traits (say, hair or eye color, facial features, or physical stature), what deﬁnes the category of games is not some single well-deﬁned collection of common properties, but rather a collection of different resemblances, a whole series of similarities and relationships shared by the class.
It seems obvious that, at least for purposes of legal theory, ‘white-collar crime’ is better approached as a family resemblance-, rather than classical-, type category. As the discussion above suggests, if we expect to ﬁnd some ﬁxed and universally-agreed-upon collection of necessary and sufﬁcient conditions that all members of the category (and only those members) share, that thereby deﬁne the category of white-collar crime across all disciplines, we are bound to be disappointed.31 Nevertheless, I believe that it would be a mistake to give up on the term entirely. Provided that we recognize its context-speciﬁc, loosely-deﬁned, family-resemblance-like-quality, ‘white-collar crime’ can remain for the legal theorist a term both powerfully evocative and ultimately indispensable. How the Term ‘White-Collar Crime’ will be Used in This Book
The main purpose of this book is to explore the moral content of a speciﬁc collection of interesting, but mostly under-theorized, crimes: perjury, fraud, false statements, obstruction of justice, bribery, extortion and blackmail, insider trading, tax evasion, and certain regulatory offenses. I use the term ‘white-collar crime’ as a kind of shorthand to refer to the crimes contained on this list, but I recognize some potential problems with my doing so. First, I acknowledge that there undoubtedly are other offenses, not on my list, that deserve to be considered white-collar crimes. This does not seem to be a particularly serious problem, however, as I make no claim to exhaustiveness. Secondly, there may be some offenses that are on my list that some readers would not consider to be white-collar crimes. While I will try to make the case for the ‘white-collar-ness’ of such offenses, the truth is that not much ultimately depends on such a label: my analysis of any given offense should work or not, regardless of whether such labeling is proper.
In any such deﬁnitional enterprise, there is, of course, always the potential for circularity: in deciding which offenses fall within the category of 31 Thus, I am in agreement with the sociologist David Friedrichs, who has suggested that any deﬁnition of white-collar crime is ultimately meaningful only in relation to its stated purpose. David O Friedrichs, Trusted Criminals (2nd edn., Belmont, CA: Wadsworth/Thomson, 2004) at 4–12; David O Friedrichs, ‘White-Collar Crime and the Deﬁnitional Quagmire: A Provisional Solution’ (1992) 3 Journal of Human Justice 5.
white-collar crime, we will be forced to assume that certain paradigmatic qualities deﬁne the category; and in determining which qualities deﬁne the category, we will have no choice but to assume that certain offenses fall within it. In the remainder of this chapter, my goal is to begin to compile a catalogue of family resemblances that characterize the list of offenses that I have just enumerated.