4 ms·

Seconding this here. If the state isn't going to prosecute big businesses for misbehaving, say goodbye to _any_ public support for business at all, small or bi

Seconding this here. If the state isn't going to prosecute big businesses for misbehaving, say goodbye to _any_ public support for business at all, small or bit. There was a philosophy that said, 'markets are important, so when a big player misbehaves, make sure the state his them HARD, otherwise people will lose faith in the markets' Now the prevailing attitude is 'these people can't be allowed to fail or the whole system will fall down.' And then, to nobody's surprise, they misbehave.

dokein 9y ago
There are lawyers that actively search for businesses misbehavior in order to bring forward class action suits. In this scenario, the bigger the misbehavior (financially) the greater the incentive, independent of the magnitude of harm on the individual scale, i.e. you’re not dependent on someone being harmed enough to want to report to authorities. That strikes me as a market behavior that’s fairly well-aligned with the optimal behavior. As to the question of criminal prosecution or harsher penalties (e.g. dissolving the corporation): to my knowledge, these suits actually draw AG attention to areas of civil misbehavior which often borders criminal misbehavior. They even surface which citizens were harmed and bring forth information gained by discovery, etc. Thus class action lawsuits actually make it easier for the government to act — that they should prosecute but do not is an independent problem.
- jaggederest 9y ago
  > They even surface which citizens were harmed and bring forth information gained by discovery, etc. I'm not sure, but is civil disclosure readily accessible to prosecutors? I thought normally it was kept confidential, and thus would only be available in the case of an active criminal case. I would expect that prosecutors wouldn't be able to trawl through it searching for evidence of wrongdoing, and there's some procedure around that in parallel construction, but I'm not a lawyer and I can't find any specific discussion of that matter particularly.
JoshTriplett 9y ago
> If the state isn't going to prosecute big businesses for misbehaving Under what law? If there's some specific law they violated, then by all means, prosecute them. But you can't post-facto say "that seems like it was wrong" and prosecute; you can only say "we should pass laws to make that wrong in the future" and prosecute further offenders. (For instance, they clearly violated insider trading laws. But what other laws, actually written and on the books, did they violate?)
- BearGoesChirp 9y ago
  > But you can't post-facto say "that seems like it was wrong" and prosecute We can and we have. There are a few justification loopholes that have been used in the past, but we can say something is so wrong that laws can be passed after the fact to punish people engaging in it. This power is dangerous, but so is many other government powers currently used.
  - JoshTriplett 9y ago
    > We can and we have. Perhaps in another jurisdiction, but not in the US you can't. https://en.wikipedia.org/wiki/Ex_post_facto_law https://en.wikipedia.org/wiki/Ex_post_facto_law It's a fundamental premise that you can't decide something formerly legal is illegal after the fact and go after someone retroactively. (Now, if they're still doing it, you can, which is also deeply abusable, but marginally less so.)
    - BearGoesChirp 9y ago
      >Perhaps in another jurisdiction, but not in the US you can't. Yes you can. Even if there are rules banning it, like any system made by humans, exceptions are made when they are popular enough (or when the target is unpopular enough). In the US in particular, the way exceptions are made is to consider the punishments not being punishments. So while this does mean that extra prison time can't be used, things like indefinite involuntary commitment or extensions of no punishment actions are allowed. One example is extensions of time on the SOR, which has been ruled to not violate ex post facto even when the extension happens after the sentence has been given. As I said, we can and we do. We just play creatively at it so we can pretend we don't violate ex post facto.

dokein 9y ago

There are lawyers that actively search for businesses misbehavior in order to bring forward class action suits. In this scenario, the bigger the misbehavior (financially) the greater the incentive, independent of the magnitude of harm on the individual scale, i.e. you’re not dependent on someone being harmed enough to want to report to authorities. That strikes me as a market behavior that’s fairly well-aligned with the optimal behavior. As to the question of criminal prosecution or harsher penalties (e.g. dissolving the corporation): to my knowledge, these suits actually draw AG attention to areas of civil misbehavior which often borders criminal misbehavior. They even surface which citizens were harmed and bring forth information gained by discovery, etc. Thus class action lawsuits actually make it easier for the government to act — that they should prosecute but do not is an independent problem.

jaggederest 9y ago
> They even surface which citizens were harmed and bring forth information gained by discovery, etc. I'm not sure, but is civil disclosure readily accessible to prosecutors? I thought normally it was kept confidential, and thus would only be available in the case of an active criminal case. I would expect that prosecutors wouldn't be able to trawl through it searching for evidence of wrongdoing, and there's some procedure around that in parallel construction, but I'm not a lawyer and I can't find any specific discussion of that matter particularly.

JoshTriplett 9y ago

> If the state isn't going to prosecute big businesses for misbehaving Under what law? If there's some specific law they violated, then by all means, prosecute them. But you can't post-facto say "that seems like it was wrong" and prosecute; you can only say "we should pass laws to make that wrong in the future" and prosecute further offenders. (For instance, they clearly violated insider trading laws. But what other laws, actually written and on the books, did they violate?)

BearGoesChirp 9y ago
> But you can't post-facto say "that seems like it was wrong" and prosecute We can and we have. There are a few justification loopholes that have been used in the past, but we can say something is so wrong that laws can be passed after the fact to punish people engaging in it. This power is dangerous, but so is many other government powers currently used.
- JoshTriplett 9y ago
  > We can and we have. Perhaps in another jurisdiction, but not in the US you can't. https://en.wikipedia.org/wiki/Ex_post_facto_law https://en.wikipedia.org/wiki/Ex_post_facto_law It's a fundamental premise that you can't decide something formerly legal is illegal after the fact and go after someone retroactively. (Now, if they're still doing it, you can, which is also deeply abusable, but marginally less so.)
  - BearGoesChirp 9y ago
    >Perhaps in another jurisdiction, but not in the US you can't. Yes you can. Even if there are rules banning it, like any system made by humans, exceptions are made when they are popular enough (or when the target is unpopular enough). In the US in particular, the way exceptions are made is to consider the punishments not being punishments. So while this does mean that extra prison time can't be used, things like indefinite involuntary commitment or extensions of no punishment actions are allowed. One example is extensions of time on the SOR, which has been ruled to not violate ex post facto even when the extension happens after the sentence has been given. As I said, we can and we do. We just play creatively at it so we can pretend we don't violate ex post facto.