4 ms·

> But, if the execs themselves were the ones that ordered the employee to do this... or (and this often seems more likely) if the execs have not clearly insti

> But, if the execs themselves were the ones that ordered the employee to do this... or (and this often seems more likely) if the execs have not clearly instituted reasonably sufficient protocols to prevent X from happening... They are the buggers abundantly paid for good governance, after all.

jacquesm 7y ago
Sure, but the more likely way in which these things go is: "Do what you have to do to make us pass those emissions tests" and "Get rid of that industrial waste" and so on. No clear command to do something illegal but the employee is left with two choices: do something illegal or end up not doing what they were told to do. Culpability is a thing that can be smeared out effectively across the layers of a large organization where each layer only sees the delta between the one above it and the one below it, the people that know the law and the consequences are safely (or so they think) insulated from the hands that commit the crimes and the hands that commit the crimes typically don't know the law. This situation has - as far as I know - never really been addressed explicitly in the law hence the institutionalization of 'the buck stops at the top'. Even if you don't know and even if you did not order it explicitly you are - and should - still be held responsible. The question at hand is if that should include criminal liability for all cases where the employees break the law and I think there are plenty of cases where employees breaking the law should not lead to culpability of management, for instance, those cases where employees gain an advantage for themselves at the expense of the company, the customers or the society they operate in. But in most other cases where the company gained an advantage the execs should be liable. That alone will get companies to behave like good (immortal) citizens.
- tempguy9999 7y ago
  My point is to exactly prevent this level of leeway being given to an employee. The execs must make it clear in writing how to do a significant task. If they do not, they are culpable for the outcome just as if they eg. forged the results themselves.
  - jacquesm 7y ago
    That has a serious problem: you can not possibly see in advance what people are going to do and if there is one thing I've learned from a couple of decades of programming and working with teams no matter how clear you thought your writing was there will always be something or someone that will take the last bit of ambiguity and interpret it in some creative way. That's why there is such a huge gulf between US law and EU law: in the US, the letter of the law is all that matters, in the EU, where laws are a lot more ambiguously specified it is the spirit of the law that matters. So an EU executive could be found liable because the company violated the spirit of the law whereas a US executive would walk even though both companies would do the exact same thing. But once the letter of the law is violated - especially in so-called white collar crime - there is still no guarantee of a conviction because corporations have very large budgets to protect their execs and to try to find some legal loophole. I'm (very well possibly because I'm European) more in favor of laws that are interpreted as to the spirit of the law, simply because it makes people reason from some level of goodwill rather than by trying to maximize the take by legal hair splitting.
    - 0815test 7y ago
      > in the US, the letter of the law is all that matters This is very wrong. In common-law jurisdictions (which the U.S. is broadly-speaking one example of - some exceptions may apply which are not relevant here), judicial precedent is a key factor in interpreting "the letter of the law", which is not the case in continental/civil law. This means that a vaguely-written statute can still provide some meaningful legal certainty in the U.S., where precedent provides some commonly-understood and commonly-developed guidance to what "the spirit of the law" might be; whereas in civil law jurisdictions, overly vague or ambiguous laws can only result in judges and government officials exerting arbitrary power (and in fact this happens routinely!), with not even consistency over time (much less some even more consistent "spirit of the law"!) as a real check and constraint.

jacquesm 7y ago

Sure, but the more likely way in which these things go is: "Do what you have to do to make us pass those emissions tests" and "Get rid of that industrial waste" and so on. No clear command to do something illegal but the employee is left with two choices: do something illegal or end up not doing what they were told to do. Culpability is a thing that can be smeared out effectively across the layers of a large organization where each layer only sees the delta between the one above it and the one below it, the people that know the law and the consequences are safely (or so they think) insulated from the hands that commit the crimes and the hands that commit the crimes typically don't know the law. This situation has - as far as I know - never really been addressed explicitly in the law hence the institutionalization of 'the buck stops at the top'. Even if you don't know and even if you did not order it explicitly you are - and should - still be held responsible. The question at hand is if that should include criminal liability for all cases where the employees break the law and I think there are plenty of cases where employees breaking the law should not lead to culpability of management, for instance, those cases where employees gain an advantage for themselves at the expense of the company, the customers or the society they operate in. But in most other cases where the company gained an advantage the execs should be liable. That alone will get companies to behave like good (immortal) citizens.

tempguy9999 7y ago
My point is to exactly prevent this level of leeway being given to an employee. The execs must make it clear in writing how to do a significant task. If they do not, they are culpable for the outcome just as if they eg. forged the results themselves.
- jacquesm 7y ago
  That has a serious problem: you can not possibly see in advance what people are going to do and if there is one thing I've learned from a couple of decades of programming and working with teams no matter how clear you thought your writing was there will always be something or someone that will take the last bit of ambiguity and interpret it in some creative way. That's why there is such a huge gulf between US law and EU law: in the US, the letter of the law is all that matters, in the EU, where laws are a lot more ambiguously specified it is the spirit of the law that matters. So an EU executive could be found liable because the company violated the spirit of the law whereas a US executive would walk even though both companies would do the exact same thing. But once the letter of the law is violated - especially in so-called white collar crime - there is still no guarantee of a conviction because corporations have very large budgets to protect their execs and to try to find some legal loophole. I'm (very well possibly because I'm European) more in favor of laws that are interpreted as to the spirit of the law, simply because it makes people reason from some level of goodwill rather than by trying to maximize the take by legal hair splitting.
  - 0815test 7y ago
    > in the US, the letter of the law is all that matters This is very wrong. In common-law jurisdictions (which the U.S. is broadly-speaking one example of - some exceptions may apply which are not relevant here), judicial precedent is a key factor in interpreting "the letter of the law", which is not the case in continental/civil law. This means that a vaguely-written statute can still provide some meaningful legal certainty in the U.S., where precedent provides some commonly-understood and commonly-developed guidance to what "the spirit of the law" might be; whereas in civil law jurisdictions, overly vague or ambiguous laws can only result in judges and government officials exerting arbitrary power (and in fact this happens routinely!), with not even consistency over time (much less some even more consistent "spirit of the law"!) as a real check and constraint.