Part II - The Theory of Fraud

Question 1

The nature of fraud

Answer 1

> S. P. Green, ‘Lying, Misleading & Falsely Denying: How Moral Concepts Inform the Law of Perjury, Fraud, & False Statements.’ (2001):

• Stuart Green suggests there’s a need to distinguish between lying and other forms of deception.
  1. Conceptual differences between lying & other forms of deception.
  2. Caveat auditor: the moral distinction between lying and merely misleading.

Question 2

The nature of fraud - S. P. Green, ‘Lying, Misleading & Falsely Denying: How Moral Concepts Inform the Law of Perjury, Fraud, & False Statements.’ (2001) - Conceptual differences between lying and other forms of deceptioin

Answer 2

> S. P. Green, ‘Lying, Misleading & Falsely Denying: How Moral Concepts Inform the Law of Perjury, Fraud, & False Statements.’ (2001):

1. Conceptual differences between lying & other forms of deception.
   - Deception = communication of a message that it is intended to cause a person to believe something that is untrue.
   - No deception unless communicatory intends to deceive.
   - Deception can come in a variety of forms, e.g. statement, question, command, opinion, picture, facial expression, gesture, verbal/non-verbal behaviour.
   - Lying constitutes a subset of deception, involving a much narrower range of behaviour.
   - Lying refers to an (intentional) deception that comes in the form of a verifiable assertion and is literally false.
   - Verifiable assertion = statement that has a determinable truth value.
   - Literally false = unambiguous.
   - Difference between lying and non-lying (misleading) deception is essentially the difference between (1) asserting what one believes is literally false, and (2) leading the listener to believe something false by saying something that is either true or has no truth value.

Question 3

The nature of fraud - S. P. Green, ‘Lying, Misleading & Falsely Denying: How Moral Concepts Inform the Law of Perjury, Fraud, & False Statements.’ (2001) - Caveat auditor: the moral distinction between lying and merely misleading

Answer 3

> S. P. Green, ‘Lying, Misleading & Falsely Denying: How Moral Concepts Inform the Law of Perjury, Fraud, & False Statements.’ (2001):

2. Caveat auditor: the moral distinction between lying and merely misleading.
   - Is there also a moral distinction between lying and merely misleading?
   - Claims that merely misleading is less wrongful than lying because of the principle of caveat auditor: ‘listener beware’, which only applies to misleading not lying.
   - The principle says that in certain circumstances, a listener is responsible for ascertaining that a statement is true before believing it.
   - Charles Fried: “Every lie necessarily implies - as does every assertion - an assurance, a warranty of its truth.”
   - If A tells B a lie, B is justified in putting her faith in A; B needn’t be on guard or question A’s veracity. If A is mistaken about her assertion, then she’s wholly responsible for B’s false belief. And if A’s untrue statement has been intentional, it is A who is wholly to blame.
   - Merely misleading involves a different dynamic.
   - No assertion so no warranty of truth B can rely on.
   - Lying & misleading elicit different set of reactive emotions as V deceived by a non-lie feels foolish & embarrassed whereas V who has been lied to feels (in Adler’s words) ‘brutalised’ by some external force.

Question 4

The nature of fraud - S. P. Green, ‘Lying, Misleading & Falsely Denying: How Moral Concepts Inform the Law of Perjury, Fraud, & False Statements.’ (2001) - conclusion

Answer 4

> Arguing that lying and deception are distinct doesn’t mean lying is always worse.
In some unusual cases, a ‘bald-faced’ lie may actually seem less objectionable than other forms of deception - with all their subterfuges, dissembling, and pretense.
Point is that there are real & articulable differences in moral content between lying and other forms of deception, and that, ceteris paribus, lying is more wrongful than merely misleading.

Question 5

The nature of fraud - Professor Buell

Answer 5

> S. Buell, ‘“White Collar” Crimes’ 2014:

• Professor Buell explains why he thinks it’s difficult to come up with a single definition of fraud or white-collar crime generally. As technology, business practice, and ethics change, so the concept of fraud changes too.
• Scale of embeddedness.
• Murder at one end and white-collar offences at the other for example.
• Embeddedness = how enmeshed with and not readily distinguishable from socially acceptable or even welcome conduct.
• With white-collar offences, courts have to make difficult determination of when behaviours cross the line from ‘aggressive’ or ‘sharp’ to criminal.
• This feature of embeddedness in routine activities that are mostly conducted within legitimate & important social institutions produces acute problems of legal specification.
• Making issue more difficult is that white-collar prohibitions deal with sectors of social activity in which technologies and norms evolve rapidly, potentially leaving each new move of legal regulation one step behind.
• White-collar cases much more often turn on Qs of MR - what precisely was in D’s mind at the relevant moment - than on Qs of AR - what did D do.

Question 6

The nature of fraud - Professor Buell - factors influencing ambivalence towards white-collar crimes

Answer 6

> 2 factors influencing ambivalence towards white-collar crimes:

1. Capitalist economic system. In morally charged realm of criminal law, this makes likely a public belief that pursuit of wealth can be either worthy or repulsive, and difficulty in clearly understanding or seeing the difference between the two. Greed is both good and bad.
2. Ideas on equality. Social class. As criminal justice system has grown belief has grown that white-collar criminals ought to be treated the same as common criminals who are subject to intrusive & punitive measures.