100 Years of White Collar Crime in "Twitter"
Podgor, Ellen S., The Review of Litigation
One could hardly use Twitter to track 100 years of white collar crime, since this social networking forum was first created in 2006. ' But neither could one go back 100 years to track white collar crime since the term "white collar crime" was first coined by Edwin Sutherland in 1939.2 So this Essay commences with two false conceptions: both Twitter and the term white collar crime have not existed for 100 years.
As a social networking website that allows individuals to post messages called "tweets" of up to 140 characters, Twitter advertises itself as "a real-time information network powered by people all around the world that lets you share and discover what is happening now."3 Had it existed for the last 100 years it is likely that many recent white collar crime events would have been permanently displayed on Twitter sites throughout the world. After all, white collar criminals and their activities are not new themes with the media.
What this Essay attempts to do is capture some of the key events in the last 100 years that would likely have been prominently displayed on Twitter, had it existed at the time. It looks first at corporate criminal liability, then individual liability, and then discusses key statutes and crimes that have been used in the prosecution of white collar criminal activity. In this regard, mail fraud, RICO, and perjury are examined. Finally, this Essay notes some of the sentencing issues that have influenced the treatment of white collar crime. The ultimate goal of this fictional presentation is to demonstrate a historical overview of white collar crime happenings. But in doing so, it is important to note that the events mentioned are merely representative of many white collar crime investigations and prosecutions. This is not an exhaustive study of white collar crime over the past 100 years.
II. WHICH PRISON WILL CORPS GO TO?
Well before the term "white collar crime" was coined, corporations had been found criminally liable. The Supreme Court's decision in New York Central and Hudson River Rail Road Company v. United States* is often cited as the first to impose corporate criminal liability for a crime that required a mens rea.5 Decided in 1909, the decision upheld criminal liability for violations of the Elkins Act.6 Fearful that criminal offenses would go unpunished, the Court decided that there was no rationale for excluding corporations from criminal liability.7 The criminal acts in the New York Central case were performed by a general freight traffic manager and assistant traffic manager, individuals who were clearly agents of the company and acting within the scope of their employment.8 Despite the fact that prior decisions had limited corporate criminal liability to acts of omission or strict liability crimes, this Court extended criminal liability to corporations that violated a rebating statute with a required mens rea element.9 In so doing, the Court rejected the common law approach that corporations could not be criminally culpable because they had neither "mind," nor "body," and were incapable of being "imprisoned."10
It seems likely that corporate criminality has been influential in the rise of white collar criminal sections in major law firms. Fifty years ago, it was common for large law firms to send white collar crime cases to criminal attorneys who were not a part of their law firm.11 Eventually larger firms formed "special matters" departments within the firm to handle the white collar criminal cases.12 Today one finds significant acceptance of white collar representation in major law firms.13 Perhaps if New York Central was handed down in more recent times, the tweet of white collar defense attorneys might be "At last (sigh) paying clients." And federal prosecutors might be tweeting, "Alas, corporations pay."
Proving corporate criminal liability has been easier in recent years as a result of a doctrine that allows for a collection of evidence to serve as the basis for showing entity liability. …