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Criminal Law and Financial Markets: Can Money Prevent You From Doing Time? -A Talk with Prof. Samuel

After devastating events like the financial crisis of 2008, people are quick to place blame and call for the prosecution of those involved in the scandal. As I sat down with my plate of Guasaca, it seemed to me that white collar crime was simple. Commit fraud?—Prison. Insider trading?—Prison. Money laundering?—Prison. But what do you do when the line between what is right and wrong becomes blurred? This is the very question Duke professor of law Samuel Buell proposed as he sat down to discuss with members of Honor Council, Scale and Coin, Consulting Club, and other members of the Duke Community.

What is so difficult when it comes to discussing honor in the corporate world is that there is no set of rules that outlines what is against the law and what is not. When a new trader or banker enters into the industry, there is an unspoken agreement to “cheat” a little bit. If you don’t cheat or play the system, you feel like you’re the only one losing the game. In an analogy Professor Buell used, if you enter into a game of poker, you better be ready to deceive the other players, and you better be prepared to get deceived. Crime, by its very nature, must be an aberration. When everyone is doing it, can it still be considered a crime?

Like in most real life situations, white collar crime is not as black and white as most people make it out to be. Crime in the corporate world is not so much a matter of finding the evidence to prove someone’s innocence or guilt as it is figuring out what should be considered a crime. When it comes down to prosecuting white collar criminals, intent is what matters. Did the accused know what he was doing was wrong at the time? Did he do it with the intent of harm, or was he simply carried off by the wave of institutionalized fraud? Even when there is evidence of mal-intent, it’s difficult to pin down who should be blamed. At the end of the discussion, the unanswered question was this: in a world in which everyone is involved in crime, what, if any, should the standard for honor and morality be?

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