4 ms·

> They really dislike insider trading, it's one of the few things where even rich people can get imprisoned -- and the typical jail sentence has been steadily c

> They really dislike insider trading, it's one of the few things where even rich people can get imprisoned -- and the typical jail sentence has been steadily climbing up for decades now. Insider trading, like many white-collar crimes, exists primarily for its value as a weapon. There is nothing actually illegal about the act of selling a stock; it's all about casting aspirations as to intent and who-knew-what-when. In other situations, intent is usually an aggravating factor, enhancement, or affirmative defense. It is not the thing that qualifies an otherwise 100% legitimate act as a bad thing. My anecdotal, unsubstantiated perspective is that insider trading is unlikely to be an issue for anyone who hasn't made enemies, and that it may suddenly become an issue for anyone naive enough to make enemies recklessly. cf. Martin Shkreli, who couldn't be linked to a specific "bad trade" so was brought on generic "securities fraud" instead. Not playing ball with the people wielding these powers seems to be the dangerous thing.

emodendroket 9y ago
The expression you're looking for is "casting aspersions."
- cookiecaper 9y ago
  Heh, you're right. I promise I knew that. ;) It's too late to fix the typo now, but I appreciate the correction.
foldr 9y ago
Intent is a key component of most crimes, isn't it? https://en.wikipedia.org/wiki/Mens_rea https://en.wikipedia.org/wiki/Mens_rea
- cookiecaper 9y ago
  Disclaimer: I'm not a lawyer, there are definitely people who can explain this better, and I'm probably using these terms incorrectly. Yes, mens rea is an important consideration, but it's nuanced. Check the Model Penal Code [0], which identifies four differing types of mens rea, including negligence and recklessness; that is, a "guilty mind" (mens rea), for criminal purposes, does not necessarily require what would be conventionally considered bona fide malice or intent to harm. What I meant when I said an "enhancement" or "aggravating factor" is that usually you have an objectively asocial actus reus, like theft, and should mens rea come into play, it's generally a defensive thing seeking to exculpate the accused, as in "I didn't know it belonged to someone else" (the affirmative defense), not to deny the act. But with insider trading and other instances of nuanced malum prohibitum [1], the usual relationship between actus reus and mens rea is inverted. To make the crime, one starts with the mens rea, the bad intent, and must identify (or, if necessary, manufacture) an apparently-normal act to register as the external offensive conduct that harmed society and warrants legal action. That is a scarier proposition because if your daily business involves technical acts that can be converted into actus reus, there's obviously going to be ample opportunity for people to assign and rationalize their preferred ideas about your thought process there and convince themselves that you're a criminal based on their personal level of dislike or offense. If this gets brought in court, your defense will amount to convincing the jury to believe you instead of the prosecutor, which is a straight-up likability and performance contest. Whereas, with better-defined crimes, there is a physical, independent actus reus that people recognize as objectively bad and probably intentional. If you didn't steal the thing, if they can't show that you stole the thing, that's now the ground that you're fighting over, and that's much better for the defendant because it's much less fickle. Essentially it makes every defense necessarily affirmative because the conduct is not otherwise unlawful. The government must dislike you enough to assume bad faith first. [0] https://en.wikipedia.org/wiki/Model_Penal_Code#Mens_rea_or_culpability https://en.wikipedia.org/wiki/Model_Penal_Code#Mens_rea_or_c... [1] https://www.law.cornell.edu/wex/malum_prohibitum https://www.law.cornell.edu/wex/malum_prohibitum

emodendroket 9y ago

The expression you're looking for is "casting aspersions."

cookiecaper 9y ago
Heh, you're right. I promise I knew that. ;) It's too late to fix the typo now, but I appreciate the correction.

foldr 9y ago

Intent is a key component of most crimes, isn't it? https://en.wikipedia.org/wiki/Mens_rea https://en.wikipedia.org/wiki/Mens_rea

cookiecaper 9y ago
Disclaimer: I'm not a lawyer, there are definitely people who can explain this better, and I'm probably using these terms incorrectly. Yes, mens rea is an important consideration, but it's nuanced. Check the Model Penal Code [0], which identifies four differing types of mens rea, including negligence and recklessness; that is, a "guilty mind" (mens rea), for criminal purposes, does not necessarily require what would be conventionally considered bona fide malice or intent to harm. What I meant when I said an "enhancement" or "aggravating factor" is that usually you have an objectively asocial actus reus, like theft, and should mens rea come into play, it's generally a defensive thing seeking to exculpate the accused, as in "I didn't know it belonged to someone else" (the affirmative defense), not to deny the act. But with insider trading and other instances of nuanced malum prohibitum [1], the usual relationship between actus reus and mens rea is inverted. To make the crime, one starts with the mens rea, the bad intent, and must identify (or, if necessary, manufacture) an apparently-normal act to register as the external offensive conduct that harmed society and warrants legal action. That is a scarier proposition because if your daily business involves technical acts that can be converted into actus reus, there's obviously going to be ample opportunity for people to assign and rationalize their preferred ideas about your thought process there and convince themselves that you're a criminal based on their personal level of dislike or offense. If this gets brought in court, your defense will amount to convincing the jury to believe you instead of the prosecutor, which is a straight-up likability and performance contest. Whereas, with better-defined crimes, there is a physical, independent actus reus that people recognize as objectively bad and probably intentional. If you didn't steal the thing, if they can't show that you stole the thing, that's now the ground that you're fighting over, and that's much better for the defendant because it's much less fickle. Essentially it makes every defense necessarily affirmative because the conduct is not otherwise unlawful. The government must dislike you enough to assume bad faith first. [0] https://en.wikipedia.org/wiki/Model_Penal_Code#Mens_rea_or_culpability https://en.wikipedia.org/wiki/Model_Penal_Code#Mens_rea_or_c... [1] https://www.law.cornell.edu/wex/malum_prohibitum https://www.law.cornell.edu/wex/malum_prohibitum