An Uneasy Case for White Collar 'Martyrs'

Abstract

To his credit, Professor Sandeep Gopalan has written a provocative Article. As far as I understand it, his argument is first that there is a subset of white-collar crimes “involving corporate fiduciaries taking bad decisions at the expense of shareholders (corporate governance offenses)” (p. 3). Further, for a subset of these offenses that “do not involve fraud as moral wrongfulness” (p. 3), he proceeds to argue “that whichever theoretical justification underpins the decision to criminalize, imprisonment must not follow conviction. The conviction, despite the lack of incarceration, and the consequential sanctions likely to be imposed on the wrongdoer are sufficient to satisfy the three main justifications for criminalization [deterrence, retribution, rehabilitation].” (p. 4). Gopalan thus presents a stimulating argument; indeed, to the extent his goal is to foster intellectual discourse, it is a resounding success.

While I applaud Professor Gopalan for his courage, however, I find his thesis uneasy. This Essay summarizes my reactions, and is structured into three principal sections. Part I addresses some minor difficulties I have with the article. Part II seeks to get beyond these relatively small quibbles to argue that the article’s overall theoretical framework is implausible: it delimits a category of offenses that is both narrow and unclear at the same time, falls prey to commodifying human behavior through a rational actor model, and fundamentally offers anemic remedies. Part III concludes by arguing that the Article’s case study is ultimately unconvincing.