A wide range of commentators – including some pretty sophisticated ones – have raked through the ruins of the 2008 financial collapse, confident that there are significant criminal prosecutions to bring against individuals and that the Justice Department should be faulted for its failure to bring them. Their confidence that blockbuster criminal cases could have been made rests on shaky grounds. So, too, does their faith that the hunting of heads is a socially productive response to the collapse. If anything, a focus on headhunting will only distract from, and reduce the pressure for, efforts to explain the collapse and prevent its recurrence.
In a country where "to make a federal case" out of something is simply to treat it seriously, one can hardly quarrel with the instincts of laypeople who think that federal prosecutions are a fitting answer to – even a solution for – massive institutional failures over which extravagantly paid chieftains presided. All too frequently absent from current debates has been sustained engagement with realities of federal criminal law enforcement – realities that even Judge Jed Rakoff, a masterful Southern District of New York trial judge and one of the nation's leading white collar crime experts, gave short shrift to in a recent article. The goal of this essay is to bring somewhat prosaic considerations of law and institutional capacity back into the conversation. While I offer little in the way of regulatory or architectural reform, I simply seek to clear away broad rhetoric that can only impede such efforts.
Daniel C. Richman,
Harv. L. & Pol'y Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/512