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>> That is a systemic problem, one which we don't have a good solution for. There is a pretty straightforward solution. I'll leave to the reader whether or not

>> That is a systemic problem, one which we don't have a good solution for. There is a pretty straightforward solution. I'll leave to the reader whether or not it is a good one. Redefine the crimes so they are easier to prove. In many cases that is going to involve moving from a mens rea (guilty mental state) of intentionally to recklessly, negligently or even eliminating mens rea altogether and just requiring an actus reus (guilty act). In some cases that might mean criminalizing more acts of omission instead of requiring proof of an overt bad act. I want to be clear that this wouldn't be costless. It goes against much our existing framework for what makes people criminals. It would increase the chance that someone who made honest mistakes would be criminally punished. But remember Blackstone said that it is better for ten guilty men to go free than one man suffer, not one hundred, not one thousand and certainly not all the guilty men. And he was writing in an era when all felonies were capital crimes. A small percentage of murderers getting off on technicalities is something a society can live with, even be proud of in a strange way, but when the exception swallows the rule that society is playing with fire.

morgante 11y ago
You're asking that we overturn centuries of jurisprudence just because you don't like bankers. I think that's a much bigger crime than anything financiers have supposedly committed.
- Bjartr 11y ago
  Are those centuries of jurisprudence still valuable in these scenarios if they're not working?
  - morgante 11y ago
    How do we know they're not working? Maybe it's working perfectly to protect financiers from being prosecuted for immoral but legal acts.
    - chc 11y ago
      That would be what most people mean when they say they laws are not working. Similar to how, if our laws allowed highwaymen to get away with murder, we'd say they were failing us even though they were working perfectly to protect armed robbers.
      - saryant 11y ago
        If an act isn't actually illegal, your problem isn't with the courts. It's with the legislative branch.
- bradleyjg 11y ago
  What exactly in what I wrote suggests throwing out centuries of jurisprudence? There are already strict liability crimes, much less recklessness or negligence crimes, as well as crimes of omission. Also what crime were you accusing me of having committed? Unlawful proposing of legislation Morgante doesn't like?
  - lmm 11y ago
    Strict liability crimes are a travesty against justice. They really shouldn't exist; we should be looking to remove the ones we have rather than adding any more. (GP wasn't claiming that you were literally committing a crime, rather suggesting that making it easier to convict innocent people would be a "crime" in a rhetorical sense)
- jesstaa 11y ago
  If financial institutions can commit complex theft on a massive scale without prosecution then the economy will fail. What value does money have if theft occurs on that scale regularly? Why invest in industry when it's more profitable to invest in theft?
ridgeguy 11y ago
Interesting idea, sort of a strict liability approach. If I'm a superqualified, incredibly careful, good-guy explosives chemist, I still don't get to whip up a batch of Octol in my garage. The law deems explosives manufacture an inherently dangerous activity subject to strict liability. No mens rea needed, intent is irrelevant, conduct is all. Strict liability principles have worked fairly well. Maybe they're worth trying in the financial sphere. I wonder how we would define an inherently dangerous financial activity?
totallymeat 11y ago
That's the way things work in the health care profession. If you're a nurse and you mess up (e.g. give medication to the wrong patient), you can potentially end up in jail and lose your license. It doesn't matter if it was an honest mistake or done in cold blood, your mental state doesn't factor in because it's a matter of life and death. Wouldn't be too far fetched to argue that speculative investing at too-big-to-fail scales poses a similar existential threat and should be treated accordingly by the law.

morgante 11y ago

You're asking that we overturn centuries of jurisprudence just because you don't like bankers. I think that's a much bigger crime than anything financiers have supposedly committed.

Bjartr 11y ago
Are those centuries of jurisprudence still valuable in these scenarios if they're not working?
- morgante 11y ago
  How do we know they're not working? Maybe it's working perfectly to protect financiers from being prosecuted for immoral but legal acts.
  - chc 11y ago
    That would be what most people mean when they say they laws are not working. Similar to how, if our laws allowed highwaymen to get away with murder, we'd say they were failing us even though they were working perfectly to protect armed robbers.
    - saryant 11y ago
      If an act isn't actually illegal, your problem isn't with the courts. It's with the legislative branch.
bradleyjg 11y ago
What exactly in what I wrote suggests throwing out centuries of jurisprudence? There are already strict liability crimes, much less recklessness or negligence crimes, as well as crimes of omission. Also what crime were you accusing me of having committed? Unlawful proposing of legislation Morgante doesn't like?
- lmm 11y ago
  Strict liability crimes are a travesty against justice. They really shouldn't exist; we should be looking to remove the ones we have rather than adding any more. (GP wasn't claiming that you were literally committing a crime, rather suggesting that making it easier to convict innocent people would be a "crime" in a rhetorical sense)
jesstaa 11y ago
If financial institutions can commit complex theft on a massive scale without prosecution then the economy will fail. What value does money have if theft occurs on that scale regularly? Why invest in industry when it's more profitable to invest in theft?

ridgeguy 11y ago

Interesting idea, sort of a strict liability approach. If I'm a superqualified, incredibly careful, good-guy explosives chemist, I still don't get to whip up a batch of Octol in my garage. The law deems explosives manufacture an inherently dangerous activity subject to strict liability. No mens rea needed, intent is irrelevant, conduct is all. Strict liability principles have worked fairly well. Maybe they're worth trying in the financial sphere. I wonder how we would define an inherently dangerous financial activity?

totallymeat 11y ago

That's the way things work in the health care profession. If you're a nurse and you mess up (e.g. give medication to the wrong patient), you can potentially end up in jail and lose your license. It doesn't matter if it was an honest mistake or done in cold blood, your mental state doesn't factor in because it's a matter of life and death. Wouldn't be too far fetched to argue that speculative investing at too-big-to-fail scales poses a similar existential threat and should be treated accordingly by the law.