Archived Faculty News
As the saga at H-P unfolds, additional principles emerge, giving more guidance. One very fundamental universal evident here is that, when the pendulum swings, the pendulum never stops at dead center, or anywhere near that point. As here, the pendulum continues to swing, all the way to the stops on the other side.To use another metaphor, this one from football, with indictments and threatened criminal prosecutions, there may be a bit or more of "piling on" in the Hewlett-Packard affair. I have no sympathy for the professional operatives here. They know what is permissible and what is not. California Attorney General Lockyer should have his subordinates prosecute them to the fullest extent of the law. Pretexting is not only prohibited by statutes but it seems morally reprehensible. The corporate defendants (Dunn and Hunsaker) say they thought about the legality of the tactics used but were advised by counsel that pretexting was permissible. Moreover, counsel was none other than Larry Sonsini, maybe the most powerful person in Silicon Valley (at least after Oracle CEO Larry Ellison). Is the indictment of corporate players here post-Enron, post WorldCom morality? Yes, it is. The invocation of principles from those cases is very reminiscent of "post Watergate morality" and the more than a bit of hypocrisy which surfaced in the 1970s. Does the prospective punishment fit the crime? No, it does not. Enron and WorldCom investors lost tens of billions of dollars. No one lost a dime at H-P. Ten of thousands lost their jobs as Enron vaporized and WorldCom entered bankruptcy (although WorldCom always did remain a very large and viable company, which emerged from bankruptcy as MCI, Inc., now part of Verizon, Inc.). Except for Hunsaker and Dunn, no one at Hewlett-Packard lost their positions.
What do we learn from this? One, corporate CEOs are much like ship captains: they may be blamed for everything that happens on their watch, whether they are complicit or not. Two, the much ballyhooed Department of Justice guidelines mean nothing in high profile white collar crime cases. They don't prevent lynching the less blameworthy; they also permit a mere slap on the wrist to the greedy, the sophisticated, and the stealthy if they turn state's evidence. Three, Ebbers should serve roughly the same as, or only a little more, or even a little less, time than should Andrew Fastow, at least if we are concerned about doing justice.Link: http://jurist.law.pitt.edu/forumy/2006/10/fastow-and-ebbers-tale-of-two.php
The Canadian Commission report thus underscores the problems with the "preventive paradigm" that has become the key tool of the United States government's war on terror, of which extraordinary rendition is but one tactic. First, the preventive paradigm allows the government to use force and coercion against individuals and other states based on suspicions and not hard evidence. Thousands of innocent people like Arar thus get caught in the government's dragnet. Second, the paradigm relies on methods such as torture or inhumane treatment to obtain information which the government believes can not be obtained by normal police methods such as surveillance. Since Canada could not openly torture Arar, we sent him to Syria, which would. Finally, these coercive preventive measures rely on secrecy and lack of accountability.Link: http://jurist.law.pitt.edu/forumy/2006/09/arar-report-us-should-follow-canadas.php