Capital Offenses: Business Crime and Punishment in America's Corporate Age

by Samuel W. Buell

Overview

From the lead prosecutor on the Enron investigation, an eye-opening examination of the explosion of American white-collar crime.

If “corporations are people too,” why isn’t anyone in jail?

A serious defect in a GM car causes accidents; Enron scams investors out of their money; banks bet on the housing market crash and win. In the race to maximize profits, corporations can behave in ways that are morally outrageous but technically legal.

In Capital Offenses, Samuel Buell draws on the unique pairing of his expertise as a Duke University law professor and his personal experience leading the investigation into Enron—the biggest white-collar crime case in U.S. history—to present an in-depth examination of business crime today

At the heart of it sits the limited liability corporation, simultaneously the bedrock of American prosperity and the reason that white-collar crime is difficult to prosecute—a brilliant legal innovation that, in its modern form, can seem impossible to regulate or even manage. By shielding employees from legal responsibility, the corporation encourages the risk-taking that drives economic growth. But its special legal status and its ever-expanding scale place daunting barriers in the way of federal and local investigators.

Detailing the complex legal frameworks that govern both corporations and the people who carry out their missions, Buell shows that deciphering business crime is rarely black or white. In lucid, thought-provoking prose, he illuminates the depths of the legal issues at stake—delving into fraudulent practices like Ponzi schemes, bad accounting, insider trading, and the art of “loopholing”—showing how every major case and each problem of law further exposes the ambivalence and instability at the core of America’s relationship with its corporations.

An expert in criminal law, Buell masterfully examines the limits of too permissive or overzealous prosecution of business crimes. Capital Offenses invites us to take a fresh look at our legal framework and learn how it can be used to effectively discipline corporations for wrongdoing, without dismantling the corporation.

Product Details

ISBN-13:	9780393247831
Publisher:	Norton, W. W. & Company, Inc.
Publication date:	08/16/2016
Pages:	320
Product dimensions:	6.10(w) x 9.20(h) x 1.30(d)

About the Author

Samuel Buell is Bernard M. Fishman Professor of Law at Duke University and an expert in criminal law. He served as lead prosecutor for the Department of Justice’s Enron Task Force and lives in Durham, North Carolina.

Table of Contents

Introduction xi

1 America and Business Crime 3

2 Fraud 32

3 Loopholing 75

4 Corporations as Criminals 109

5 The White Collar Beat 142

6 Criminal Defense That Pays 176

7 Judges and Their Sentences 204

8 Washington and Wall Street 234

Acknowledgments 259

Notes 261

Index 285

Editorial Reviews

05/23/2016
Why isn’t half of Wall Street in jail? Or at least in court? Several years after the Great Recession, that is a question Main Street America would still like answered. Buell, a law professor at Duke University and former Enron prosecutor, has an answer, but probably not the one people want. In short: it’s complicated. In this comprehensive examination of white-collar criminal law, Buell cogently explains the difficulties inherent in corporate criminal prosecutions. First, corporations aren’t people, so they can’t be incarcerated. (Generally, they can only be embarrassed and fined.) Second, the misdoings of corporations, even when deadly—as with General Motors’s faulty ignition switch or the explosion at BP’s Deepwater Horizon oil rig—are seldom attributable to one person. Instead, they generally arise from systemic flaws in corporate culture or procedure. Aside from these difficulties, the laws governing corporate malfeasance are deliberately vague and often require that prosecutors prove malicious intent, making convictions difficult. Buell also explains why corporations, as engines of commerce and promoters of economic welfare, are given leniency and latitude that would never be offered to human beings. Without ever coming across as specious or barristerial, he has crafted a thoughtful and thought-provoking examination of crime on Wall Street vs. crime on Main Street. (Aug.)

Publishers Weekly

"[Buell] has crafted a thoughtful and thought-provoking examination of crime on Wall Street vs. crime on Main Street."

Publishers' Weekly

"[Capital Offenses] deserves attention from anyone concerned with the topic [of white collar crime]. . . . The author brings two excellent credentials to his task: a breezy writing style and deep prosecutorial experience. . . . Buell does an admirably brisk job of analyzing what’s gone wrong with a litany of corporate prosecutions."

Bloomberg - Paul Barrett

"Capital Offenses is a groundbreaking book, one that provides a fascinating analysis of the seemingly endless phenomenon of white-collar crime. Sam Buell, a law professor at Duke University and a former federal prosecutor who handled some of the most prominent corporate criminal cases in American history, is uniquely positioned to detail the circumstances and complexities surrounding corporate crime. In an era where legal violations in the boardrooms have destroyed and even ended lives, Buell’s is an essential book that explains what every American needs to know about these offenses. It is an important achievement that will reshape the ways we think about white-collar crime."

Kurt Eichenwald

"This is an extraordinary book that will make you rethink whatever you thought you knew about corporate crime and punishment. Professor Buell draws on his experience pursuing white-collar criminals to expose in plain language a system that fails to deliver for perpetrators and victims alike."

David Cay Johnston

06/01/2016
Buell (Bernard M. Fishman Professor of Law, Duke Univ.) provides a career prosecutor's legal justification for corporate criminal prosecutions, conceding that corporate crimes turn on "fine and difficult-to-specify lines." In clear language and using timely examples, he proceeds through types of crimes, starting with fraud and "loopholes." The most important point, according to Buell, is proving state of mind. After addressing complaints about prosecuting these cases, he concludes, "corporate criminal liability is here to stay." He provides pro-prosecution commentary on the Enron, WorldCom, and Arthur Andersen cases and claims that most white-collar defendants are guilty. The book ends with a call to make corporations by law responsible to the public. For a more trenchant opposing view, compare this book to defense attorney Harvey A. Silverglate's Three Felonies a Day, which blasts federal use of fuzzy criminal laws. Silverglate addresses many of the same cases as Buell and argues that "when the feds appear on the scene," no one is safe. Taken together, the texts show both sides of the coin. Buell's text, as with an indictment, is persuasive but not the final word on the subject. VERDICT Recommended for law and public policy readers.—Harry Charles, St. Louis

Library Journal

2016-05-03
The federal prosecutor for the massive Enron investigation examines why corporations and their executives rarely face criminal charges, no matter how widespread their hurtful conduct. Buell (Law/Duke Univ.), who seeks to explain the system of law to nonlawyers, opens his extended essay with the example of a young man dying in the crash of an automobile driven by his fiancee. A Texas prosecutor charged her with manslaughter after learning she had ingested medication the previous night and perhaps should not have been driving. Beset with emotional agony, the driver pled guilty. Ten years later, everybody involved in the apparent crime learned that the fatal crash had been caused by General Motors, which had equipped the car with a defective mechanical starter. Many people would make the conclusion that GM killed the front-seat passenger. It's a fair enough conclusion, writes Buell, but where does it lead? Can an inanimate corporation be imprisoned for homicide or other criminal offenses? If prosecutors want to build a criminal case against any employee, how would it be possible to prove culpability beyond a reasonable doubt? Readers who believe corporations and their employees should be charged with criminal conduct will find Buell's teaching instructive—and frustrating—on nearly every page. He offers numerous examples of how the traditions and procedures of the American court system lead to the inexorable conclusion that corporate managers will almost never end up in prison. Almost every case of corporate wrongdoing, including by financial institutions in the housing market crash of 2007 and 2008, turns out to be hopelessly vexing if a prosecutor wants to imprison a human being. Buell considers changes in the laws that Congress could approve, but he worries that proposed changes would result in unfair proceedings, thus compromising the rule of law. A book that will challenge conventional wisdom among readers who intuitively believe that corporations often game the system.

Kirkus Reviews