The Concept of White Collar Crime in Law and Legal Theory

Abstract

Despite long-running disagreements, particularly among social scientists, about the meaning of white collar crime, the term now occurs in a wide range of contexts. The majority of American law schools have a course in the subject. Journalists and politicians refer to it regularly. Law enforcement agencies, prosecutors, and defense attorneys all hold themselves out as specialists in the area. And the term is increasingly being used outside the United States, both in English and in translation. Yet, despite its currency in the academic, professional, and popular culture, it has generally been assumed that the term has no particular significance in substantive criminal law. This article dispels that assumption by examining five contexts in which the term white collar crime has been used in substantive criminal law: (1) to identify aggravating circumstances that are relevant to sentencing, (2) to define a class of victims who are entitled to various rights, (3) to define the jurisdiction of certain state prosecuting officials, (4) to create funding mechanisms for law enforcement programs and research facilities, and (5) symbolically, in the title or section heading of substantive criminal law provisions, to signal a shift in legislative attitudes (as has been done, most prominently, in the recently-enacted Sarbanes-Oxley Act). The article also considers the extent to which white collar crime is appropriately used in discussions of criminal law theory. It contends that, despite the many problems it poses, white collar crime remains an indispensable analytical label. But the family-resemblance, or paradigmatic, quality of the term needs to be acknowledged, as does the fact that its meaning will inevitably vary within and across disciplines.