Professor Stuart Green Explores the Moral Underpinnings of Criminal Offenses
In two books and more than 40 articles, book chapters and encyclopedia entries, Stuart P. Green has explored what he terms the “moral content” of criminal law, especially of offenses that are described as white-collar crimes. Sometimes they are offenses that, with the right mix of celebrity defendant and debatable charges, grab the attention of the lay person as well as the law professor. The watercooler conversation may focus on the blameworthiness of and appropriate punishment for the alleged wrongdoer (individual or corporate), and the scholarly discourse on exactly how such blameworthiness should be conceptualized, but both discussions are essentially about the grey area of certain moral and legal principles.
|Stuart P. Green|
Professor Green’s thought-provoking scholarship on white-collar crime and other topics in criminal law and procedure has earned him an international reputation as one of today’s most influential criminal law theorists. This spring, Rutgers University recognized his stature by promoting Green to Distinguished Professor II, an honor that coincided with the publication of his latest book, 13 Ways to Steal a Bicycle: Theft Law in the Information Age. Anglo-American theft law, essentially unchanged since revisions were made 50 years ago, is ill-suited, he writes, for an age of increasingly commodified information and other intangibles and ever more sophisticated means of committing theft and fraud. Praised as “groundbreaking” and a “tour de force,” the book urges a thorough reconsideration of exactly what should count as stealing and exactly what types of things can be stolen.
Lying, Cheating, and Stealing: A Moral Theory of White Collar Crime, an earlier book, received the Outstanding Publication Award from the National White-Collar Crime Center and has been translated into several languages. Green also is co-editor (with R.A. Duff) of both Philosophical Foundations of Criminal Law and Defining Crimes: Essays on the Special Part of the Criminal Law.
In addition to teaching and writing, Green is a member of journal editorial boards, and speaks and serves as a responder at criminal law conferences around the world. Most recently he traveled to Hong Kong and Australia to deliver lectures on white-color crime topics. Since joining the Rutgers law faculty in Fall 2008, he also has convened an international conference on the philosophical foundations of criminal law, a workshop on vice and crime, and co-founded and serves as co-editor of Criminal Law and Criminal Justice Books, an online book review.
Green, who is Distinguished Professor of Law and Nathan Jacobs Scholar, discusses his academic career and his scholarship in the following Q&A:
What led you to law school and then to become an academic?
I graduated from college with a degree in philosophy. Despite the first-rate education I had received, my prospects for remunerative employment seemed pretty limited. After a couple of years working in the publishing industry, I decided to go to law school, mainly with the idea that it would give me greater potential for financial security. Law school turned out to be much more intellectually stimulating than I had ever expected. After graduation, I practiced law for a few years at a big firm in Washington, but being a corporate lawyer was never something I could really put my heart into; I was eager to return to the academy.
There are certain forms of criminality that reflect much more in the way of moral ambiguity. It seemed to me that one of the keys to finding the right line between conduct that should be treated as a crime and conduct that should not was explaining what it is that makes such conduct morally wrongful in the first place.
I was offered a job teaching at LSU Law School, so my wife and I and our three young children picked up and moved to the Deep South. Happily, I got to teach my favorite subject, criminal law, and, in my scholarship, return to some of the issues in philosophy that had first occupied me as an undergraduate. Plus, I learned to do the two-step.
What do you enjoy most about teaching?
When I was in law school, I often felt like I was learning as much from my classmates as from my professors. That’s the effect that really good classroom discussion can have: the students are talking and listening as much to each other as they are to the instructor. Creating the conditions in the classroom that make that possible can be a challenge – it’s harder than it looks. When it works, and the students are really engaged, it is exhilarating.
What do find most valuable about your collaboration with the Rutgers School of Criminal Justice on such projects as the Criminal Law and Criminal Justice Books website?
We are fortunate at Rutgers to have an excellent group of criminal law and procedure professors and an outstanding school of criminal justice – and we’re in the same building, separated by just one floor. About a year ago, our faculties teamed up to launch a website that aims to publish high quality, timely, and concise reviews of new books in the fields of criminal law and criminal justice. The site has attracted reviewers and readers from all over the globe, with a broad range of perspectives and fields of expertise. We’ve found a lot of synergies and areas of common concern. Eventually, I hope we’ll be able to expand our activities into a more broadly-based institute for criminal law.
The focus of much of your scholarship is on corporate and white-collar crime and, in particular, the moral content of many such offenses. Why is your attention drawn to that subject?
Criminal law entails the most severe sanctions that a civil society can impose on its citizens. When focused on offenders who engage in the most serious and unambiguous forms of criminality – homicide, rape, aggravated assault – application of those sanctions is normally uncontroversial.
But there are certain forms of criminality that reflect much more in the way of moral ambiguity: in the case of white collar crime, most notably, it can be hard to distinguish between fraud and “sharp dealing,” insider trading and “savvy investing,” bribery and “horse trading,” tax evasion and “tax avoidance,” extortion and “hard bargaining,” witness tampering and “witness preparation,” and so forth. It seemed to me that one of the keys to finding the right line between conduct that should be treated as a crime and conduct that should not was explaining what it is that makes such conduct morally wrongful in the first place.
In the introduction to 13 Ways to Steal a Bicycle: Theft Law in the Information Age, you write that one of the inspirations for the book was crime committed in the aftermath of Hurricane Katrina. How did that experience of living in Louisiana at the time inform your research?
I loved living in Louisiana, but there’s no denying that Hurricane Katrina exposed many of the state’s deepest dysfunctionalities, which, to me, were exemplified by the widespread looting that occurred in the wake of the storm. Some of it involved people shamelessly and heartlessly taking advantage of other people’s misfortune. In other cases, however, people stole because they were genuinely in distress, without clean water or food, in at least one case stealing needed prescription drugs from a pharmacy.
When a thief takes a tangible thing, like a bicycle or cash, the owner no longer has it. By contrast, when an offender misappropriates something that is intangible, like information or intellectual property, the loss to the owner is much less clear. Yet current law treats both kinds of takings the same. I think that’s a mistake, particularly in an age in which intangible property plays an increasingly important role in our economy.
Watching all of this unfold on television prompted me to think about the importance of the means by which theft is committed, about the complex relationship between theft and the law of property, and about how the criminal law should apply in a society with a deeply unjust distribution of property.
Was there anything that surprised you when researching the history of theft law for your latest book?
I was struck by how neglected the subject had become. The last major work on theft law was written more than 30 years ago. The fact that the subject had attracted so little attention in the interim obviously made me nervous – one always worries that a neglected subject may not really be worth writing about. But the more I looked into it, the more it seemed to me that recent developments in technology, the economy, the law, and legal theory, not to mention the prolificacy of theft itself, all suggested that the time for a comprehensive rethinking was ripe.
13 Ways to Steal a Bicycle suggests eight principles for reforming theft law, one of which is to define property clearly. What kind of definition would you favor?
When a thief takes a tangible thing, like a bicycle or cash, the owner no longer has it. By contrast, when an offender misappropriates something that is intangible, like information or intellectual property, the loss to the owner is much less clear. Those differences are reflected in the kinds of judgments people make about the wrongfulness of such acts. Studies show that, other things being equal, people generally think it’s less wrongful to misappropriate property that is intangible than property that is tangible. Yet current law treats both kinds of takings the same. I think that’s a mistake, particularly in an age in which intangible property plays an increasingly important role in our economy.
One of my proposals is to treat misappropriation of intangibles as a less serious crime than theft of tangibles. The only exception would be the unusual case where the misappropriation had the effect of completely, or nearly completely, depriving the intangible property owner of the property’s value.