Corporate and White Collar Crime: Simplifying the Ambiguous

By Podgor, Ellen S. | American Criminal Law Review, Spring 1994 | Go to article overview

Corporate and White Collar Crime: Simplifying the Ambiguous


Podgor, Ellen S., American Criminal Law Review


I. INTRODUCTION

Although law is constantly evolving, taking on new perspectives as legislatures redefine its bounds and as courts reinterpret its scope, the law relating to white collar crime is different from some other areas of law. Where property and contract law, for example, possess a stability that makes it easier to grasp their fundamentals, white collar crime is changing so rapidly that it is difficult to provide a firm or constant setting for its understanding.(1) One observes an increased breadth in the form of new statutes,(2) as well as extensions offered via case interpretations.(3) Also apparent is the expansion of federal power, now entering the realm of state and local law,(4) as well as international law for acts outside the United States.(5)

Whether white collar crime has truly increased I cannot say since I am not a sociologist, nor a criminologist. I am uncertain whether crime has actually increased or perhaps the informational basis for detecting crime has reached a level of sophistication that permits us to see that which we were unable to see before. It is, however, evident that the federal government has made white collar crime a priority(6) and that as a result of this focus, corporations and their personnel have become subject to increased scrutiny.

The interrelationship between white collar crime and corporate criminal liability merits consideration in light of the fluctuating nature of white collar crime and its increased breadth in the federal arena. Ambiguity in the law and its application is an outgrowth of these concerns. Ambiguity is not, however, a new topic to criminal law as vague terms exist throughout our statutes.(7) What is noteworthy is that issues of vagueness are more problematic here as a result of the frequency of occurrence and the environment surrounding the realm of white collar crime.(8)

White collar crime's eclectic(9) personality also raises concern in the areas of corporate criminal liability and personal liability in the corporate setting. White collar crime's incorporation of both civil and criminal law, as well as subjects such as property and securities, emphasizes its spaciousness.(10) The vast knowledge required of those seeking to abide by existing law presents a Herculean task. Simplification of the law, coupled with clarification of existing ambiguities, would significantly assist in providing law that would be accessible to corporations and their personnel.(11)

II. Development of White Collar Crime And Corporate

Criminal Liability

The term white collar crime was coined by sociologist Edwin Sutherland. He used the term in a speech he gave to the American Sociological Society in 1939.(12) He was criticizing those who premised their theories of crime on a belief that crime resulted from poverty or psychopathic and sociopathic conditions.(13) He saw another aspect to crime; crime committed by those in power. As opposed to being merely a subject of civil sanction, Sutherland expressed the view that this activity was criminal.(14) In his later book, White Collar Crime,(15) he defined the term as "crime committed by a person of respectability and high social status in the course of his occupation.""' Sutherland concentrated on the offender and the class or social status of that offender, as opposed to the criminal offense involved.

Today, it appears that the definition of white collar crime has taken a new stance.(17) The term white collar crime, in the minds of many today, reflects an examination of both the individual and the crime. In some instances, the term is defined solely from the perspective of the crime.(19) I personally find a definition that encompasses class, social status, race, or gender of a person to be a biased methodology for examining criminality.(20) More befitting, it seems to me, is an approach that looks to the activity involved and classifies that activity based upon its attributes as opposed to the socio-economic status of the individuals who engage in the acts. …

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