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I used to argue for exactly this. The thing is that people would only invest in companies with executives they personally trust. Which may be a good thing ove

I used to argue for exactly this. The thing is that people would only invest in companies with executives they personally trust. Which may be a good thing overall, but would be a big problem in the short term. I definitely think board members and Top executives should be held criminally liable for the actions of the company. Unless they can prove it was a specific bad actor, and that their policies didn't encourage illegal behavior, and that they weren't negligent in discovering and stopping said behavior. That is, if a delivery driver crashes his car because he was drinking on the job then that is on him. If the same delivery driver is speeding because he was given a list of deliveries that were not possible to make on time, that is on the executives. Conspiracy to break the speed limit, maybe even RICO charges. Even for something that simple.

yupper32 5y ago
"Unless they can prove it was a specific bad actor" That's the opposite of the entire basis of the US criminal justice system. Innocent until proven guilty. You need to prove it was them. Not have them prove it was another bad actor.
- 8note 5y ago
  Youve already been proven guilty by that point If you can prove somebody else was fully responsible, it goes to them
- mlyle 5y ago
  No, it's not. There are affirmative defenses: things that can excuse you from criminal liability if you prove a certain set of facts. For instance, self defense is generally an affirmative defense: something that the defense must prove to avoid conviction, instead of something the prosecution must disprove.
nathancahill 5y ago
> maybe even RICO charges Paging @Popehat...
curryst 5y ago
> Unless they can prove it was a specific bad actor, and that their policies didn't encourage illegal behavior, and that they weren't negligent in discovering and stopping said behavior. Asking someone to prove a negative is almost impossible. Asking them to disprove 3 is crazy. The prosecution should have the responsibility to demonstrate that the company had a systemic issue that was causing illegal behavior, either as a result of intentional pushes by someone with control, or as a result of wilful or reckless negligence. How do you prove your policies don't encourage illegal behavior? The only way I can think of is to remove or invert the policy and demonstrate that illegal behavior is unchanged or potentially higher with the reversed policy. Which, incidentally, would be a violation of the law itself. Without an intent component, well-meaning policies that accidentally increase illegal behavior become illegal. Add driver tracking software to ensure people don't speed, but because of poor design the drivers fidget with it while driving? That's a violation. The counter-side is that adding intent makes it much harder to prosecute. > and that they weren't negligent in discovering and stopping said behavior. Again, how do you demonstrate that you weren't negligent? Hind-sight will almost always show that there was something you could have done to prevent an incident. Someone will have to create some kind of criteria for determining whether an action/inaction is negligent or not. It makes far more sense to have the prosecution demonstrate that you were negligent by failing to meet such and such criteria than for you to go on a rambling speech about what you did do, and then let the prosecution pick something arbitrary that you didn't do. Just imagine that you're driving down a dark, unlit, windy country road. You come around a bend, there's a person crossing the road in all-black and you hit them. In court, you are then asked to demonstrate that you weren't negligent. Even if you were following the law, with the benefit of hindsight there are of course things you could have done. You could have driven slower; visibility was low. Maybe you shouldn't have been driving late at night; if you had just woken up, maybe a split-second in reaction time might have made a difference. Maybe if you had been scanning a little wider you would have seen them on the other side of the bend as you were coming up. Now you have to justify why you made each of those decisions, and any slip-up is a guilty sentence. Other than that, I'm on board. I just don't like pushing the burden of proof onto the accused. It's an end-run around the 4th Amendment. It makes the right against self-incrimination pointless, because refusing to testify makes you guilty and lying is a crime. It also significantly increases the power imbalance between prosecution and defense. It costs the government almost nothing to prosecute; they don't have to prove anything, so they don't need any investigators or evidence. All those costs are shifted on to the defendant, whose costs have just gone up an order of magnitude. The defendant used to need enough evidence to refute a single material point in the prosecution. If the prosecution says I was negligent because I failed to meet X requirement, I just need to prove I met that requirement or that it doesn't apply to me. If I have to prove I wasn't negligent, I now have to prove that I meet all the requirements. If I fail to pay for enough lawyers to prove each point, the prosecution can simply point to that one as the one I failed.

yupper32 5y ago

"Unless they can prove it was a specific bad actor" That's the opposite of the entire basis of the US criminal justice system. Innocent until proven guilty. You need to prove it was them. Not have them prove it was another bad actor.

8note 5y ago
Youve already been proven guilty by that point If you can prove somebody else was fully responsible, it goes to them
mlyle 5y ago
No, it's not. There are affirmative defenses: things that can excuse you from criminal liability if you prove a certain set of facts. For instance, self defense is generally an affirmative defense: something that the defense must prove to avoid conviction, instead of something the prosecution must disprove.

nathancahill 5y ago

> maybe even RICO charges Paging @Popehat...

curryst 5y ago

> Unless they can prove it was a specific bad actor, and that their policies didn't encourage illegal behavior, and that they weren't negligent in discovering and stopping said behavior. Asking someone to prove a negative is almost impossible. Asking them to disprove 3 is crazy. The prosecution should have the responsibility to demonstrate that the company had a systemic issue that was causing illegal behavior, either as a result of intentional pushes by someone with control, or as a result of wilful or reckless negligence. How do you prove your policies don't encourage illegal behavior? The only way I can think of is to remove or invert the policy and demonstrate that illegal behavior is unchanged or potentially higher with the reversed policy. Which, incidentally, would be a violation of the law itself. Without an intent component, well-meaning policies that accidentally increase illegal behavior become illegal. Add driver tracking software to ensure people don't speed, but because of poor design the drivers fidget with it while driving? That's a violation. The counter-side is that adding intent makes it much harder to prosecute. > and that they weren't negligent in discovering and stopping said behavior. Again, how do you demonstrate that you weren't negligent? Hind-sight will almost always show that there was something you could have done to prevent an incident. Someone will have to create some kind of criteria for determining whether an action/inaction is negligent or not. It makes far more sense to have the prosecution demonstrate that you were negligent by failing to meet such and such criteria than for you to go on a rambling speech about what you did do, and then let the prosecution pick something arbitrary that you didn't do. Just imagine that you're driving down a dark, unlit, windy country road. You come around a bend, there's a person crossing the road in all-black and you hit them. In court, you are then asked to demonstrate that you weren't negligent. Even if you were following the law, with the benefit of hindsight there are of course things you could have done. You could have driven slower; visibility was low. Maybe you shouldn't have been driving late at night; if you had just woken up, maybe a split-second in reaction time might have made a difference. Maybe if you had been scanning a little wider you would have seen them on the other side of the bend as you were coming up. Now you have to justify why you made each of those decisions, and any slip-up is a guilty sentence. Other than that, I'm on board. I just don't like pushing the burden of proof onto the accused. It's an end-run around the 4th Amendment. It makes the right against self-incrimination pointless, because refusing to testify makes you guilty and lying is a crime. It also significantly increases the power imbalance between prosecution and defense. It costs the government almost nothing to prosecute; they don't have to prove anything, so they don't need any investigators or evidence. All those costs are shifted on to the defendant, whose costs have just gone up an order of magnitude. The defendant used to need enough evidence to refute a single material point in the prosecution. If the prosecution says I was negligent because I failed to meet X requirement, I just need to prove I met that requirement or that it doesn't apply to me. If I have to prove I wasn't negligent, I now have to prove that I meet all the requirements. If I fail to pay for enough lawyers to prove each point, the prosecution can simply point to that one as the one I failed.