I fall on the side of the skeptics about whether criminal liability in financial reporting cases is a healthy tool because I have doubts about whether judgments are likely to be proportionate. And proportionality is a very important measure in criminal law for two reasons. First, we expect the punishment to fit the crime as a matter of justice. Secondly, if we have disproportionately harsh treatment, then the behavior of officers and directors in response to over-deterrence is that they will pay too much attention to matters that are precautionary as opposed to profit-generating. And the point of a business is to be entrepreneurial. That is a fairly familiar point, but worth emphasizing.
2 J. Bus. & Tech. L. 89-90 (2007)
Scholarly Commons Citation
Langevoort, Donald C., "The Impact on Director and Officer Behavior: Reflective Essays" (2007). Georgetown Law Faculty Publications and Other Works. 139.