The Criminalization of Compliance

Todd Haugh
92 Notre Dame L. Rev. 1215 (2017).

Abstract

Corporate compliance is becoming increasingly “criminalized.” What began as a means of industry self-regulation has morphed into a multi-billion-dollar effort to avoid government intervention in business, specifically criminal and quasi-criminal investigations and prosecutions. In order to avoid application of the criminal law, companies have adopted compliance programs that are motivated by and mimic that law, using the precepts of criminal legislation, enforcement, and adjudication to advance their compliance goals. This approach to compliance is inherently flawed, however—it can never be fully effective in abating corporate wrongdoing. Criminalized compliance regimes are inherently ineffective because they impose unintended behavioral consequences on corporate employees. Employees subject to criminalized compliance have greater opportunities to rationalize their future unethical or illegal behavior. Rationalizations are a key component in the psychological process necessary for the commission of corporate crime—they allow offenders to square their self-perception as “good people” with the illegal behavior they are contemplating, thereby allowing the behavior to go forward. Criminalized compliance regimes fuel these rationalizations, and in turn, bad corporate conduct. By importing into the corporation many of the criminal law’s delegitimizing features, criminalized compliance creates space for rationalizations, facilitating the necessary precursors to the commission of white collar and corporate crime. The result is that many compliance programs, by mimicking the criminal law in hopes of reducing employee misconduct, are actually fostering it. This insight, which offers a new way of conceptualizing corporate compliance, explains the ineffectiveness of many compliance programs and also suggests how companies might go about fixing them.

The article is here.

‘But you can’t do that!’ Why immoral actions seem impossible

Jonathan Phillips

Aeon

Originally posted September 29, 2017

Suppose that you’re on the way to the airport to catch a flight, but your car breaks down. Some of the actions you immediately consider are obvious: you might try to call a friend, look for a taxi, or book a later flight. If those don’t work out, you might consider something more far-fetched, such as finding public transportation or getting the tow-truck driver to tow you to the airport. But here’s a possibility that would likely never come to mind: you could take a taxi but not pay for it when you get to the airport. Why wouldn’t you think of this? After all, it’s a pretty sure-fire way to get to the airport on time, and it’s definitely cheaper than having your car towed.

One natural answer is that you don’t consider this possibility because you’re a morally good person who wouldn’t actually do that. But there are at least two reasons why this doesn’t seem like a compelling answer to the question, even if you are morally good. The first is that, though being a good person would explain why you wouldn’t actually do this, it doesn’t seem to explain why you wouldn’t have been able to come up with this as a solution in the first place. After all, your good moral character doesn’t stop you from admitting that it is a way of getting to the airport, even if you wouldn’t go through with it. And the second reason is that it seems equally likely that you wouldn’t have come up with this possibility for someone else in the same situation – even someone whom you didn’t know was morally good.

So what does explain why we don’t consider the possibility of taking a taxi but not paying? Here’s a radically different suggestion: before I mentioned it, you didn’t think it was even possible to do that. This explanation probably strikes you as too strong, but the key to it is that I’m not arguing that you think it’s impossible now, I’m arguing that you didn’t think it was possible before I proposed it.

The article is here.

Mike Daisey is a Liar, and So am I

By John Warner

HigherEd

Originally published on March 17, 2012

Mike Daisey is a liar.

John D’Agata is a liar.

Greg Mortenson is a liar.

James Frey is a liar.

I am a liar.

You are a liar.

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When I discuss ethics with my students, we try to suss out whether or not there are any universal truths, things which we all agree are wrong. They name the usual suspects, murder, stealing, assault, cheating, lying, etc… I then go down the line and ask how many of them have violated one of these rules at some point in their lives. They laugh as I ask about murder, and even assault. Some will admit to a petty theft of a sister’s sweater or a candy bar from a convenience store. Lots will admit to having cheated in school at one point or another. (But never in my class, of course.)

I leave lying out of the discussion, and then turn to other matters briefly before coming back to our list, and ask, “have any of you committed one of these terribly foul acts today?” Again, they laugh. Here, maybe I’ll go to the board and tap the dry erase pen on the word “lying.”

“Who’s told a lie today?” I ask.

It’s fun to watch a room full of people think. It’s one of the chief pleasures of teaching. After a few more beats as their faces softly collapse in that way that signals a small epiphany, I’ll say, “I’ve told a lie today, probably several if I think about it, and you have too.”

I ask them what they’ve lied about that day, and it’s always trivial. A lie to mom and dad about what they did the night before, or to a friend about their availability for lunch. My own lies are the same, why I didn’t make it to the previous night’s hockey game, or if I noticed that we were almost out of milk before I poured the last of it on my cereal.

In our minds, we use the “white lie” defense, a “diplomatic or well-intentioned untruth.”

“Well-intentioned.”

(cut)

Let us also acknowledge the rationale that we tell these lies in service of some greater truth is also complete and utter bullshit. Mike Daisey and Greg Mortenson and John D’Agata and James Frey, and me will tell you that we tell the lie not to enrich ourselves, or for reasons of self-preservation, but because, in the words of Daisey, we “want to make people care.”

This is convenient, and maybe we even believe it, but that doesn’t make it true. It would even be handy to blame these lies on simple greed. Mortenson and Frey have profited to the tune of millions. It’s possible Daisey is approaching that.

But I think there’s a deeper truth here, a motivation that extends beyond the transparent B.S. that these lies are in the service of a higher calling.

What these lies invariably do to the stories is take the focus off the story itself, and place it on the storyteller.

Even before Daisey’s lies were exposed, his use of them served to make himself more central to the tale. The story is no longer about exploited workers, but about an intrepid and dogged Mike Daisey who cares so darn much he has to go and witness firsthand how his gadgets get made, and once there, connects so personally and profoundly with these workers, that only he can come back home and tell the story in a way that will change hearts and minds. Daisey isn’t in it for the money, but for the ego.

The entire text is here.