White Collar Crime and Punishment: Reflections on Michael, Martha, and Milberg Weiss

Abstract

We are deeply conflicted about white collar crime and punishment. This conflict is largely born of the government's use of novel, "gray-area" legal theories in many high profile white collar prosecutions. Such prosecutions, which seek to expand the scope of existing crimes, tend to undermine the integrity and expressive function of our system of white collar criminalization. These prosecutions also may violate the defendants' right to fair notice of the possible crimes with which they may be charged. We need a new approach. First, in such "gray-area" cases, we should rely upon civil and administrative remedies except in extraordinary circumstances. Second, we should assess whether extraordinary circumstances exist by examining whether the defendant's alleged acts caused substantial, identifiable harm. To test this approach, I examine three of the most significant economic fraud investigations and prosecutions of the last 20 years - those of Michael Milken, Martha Stewart, and the Milberg Weiss law firm. I conclude that none of the cases warranted criminal prosecution on "gray-area" economic fraud theories, and that assertion of those theories actually served to undermine our confidence in white collar criminalization and punishment.

Keywords: criminal law, white collar crime, michael milken, martha stewart, milberg weiss, harm principle