The verdict of Elizabeth Holmes and the legal loopholes of “disruption”

Jacob T. Elberg, an associate professor of law at Seton Hall, who has prosecuted health care fraud in the U.S. Department of Justice, said that convicting company officials like Sherlock Holmes for crimes against the public is full of obstacles, especially Need to prove the intent department. “The core of our criminal justice system is knowledge and intentions, not just results,” he said, and this burden often poses challenges for prosecutors trying to hold company executives accountable.

Elberg said that the prosecutor’s focus on the financial fraud in the Holmes case rather than the misguided patient makes sense, because “there are clear, black and white lies, which are exactly what the system is currently doing. Required.” This is a disturbing feature for those who see this trial as an opportunity to ultimately pursue the founders’ abuse of public trust.

After the verdict came out, Elizabeth Holmes documentary director Alex Gibney (Alex Gibney) inventor, Said he was shocked and frustrated by the message it sent. “When making this movie, the bright red thread was unethical,” he told me on the phone. “They put patients at risk,” he said. “If this story was just to attract high-net-worth individuals, I would not be interested in telling this story-she crossed the moral line.”

The trial ultimately did not follow a similar arc of narrative. Perhaps it is naive to think that the court is about morality and even social responsibility. Of course, many lawyers—whether they are the attorney general and district attorneys, or class-action experts—are thinking creatively about how to use the law to punish opioid manufacturers, fossil fuel companies, tobacco companies, and gun manufacturers because They cause harm to society. But these people tend to use civil law, and civil law and criminal law do not have the same intent requirements.

For technology companies, the task of making them bear criminal responsibility for the social damages they cause is even more difficult. First of all, these companies are often welcomed by the public and challenge allegations of injury by looking far away and in the happy places they lead us to. They also benefit from being seen as passive-they are not digging wells, they tell us that they are just letting anti-vaccine people spray. The source of their misconduct may be a mysterious algorithm that seems to operate on its own. This is a convenient, technically supported decision to break away from their platform.This may explain the sense of helplessness that many of us have when talking about the growing power of technology companies-there seems to be Victims around us, But no crime or offender is related to suffering.

To change this direction—to protect the public as strictly as investors—need to rethink the way we expect companies and their executives to behave. We need to expand the capacity of federal agencies such as the Food and Drug Administration to conduct in-depth investigations to expose the bad intentions of corporate officials. In addition, we can shift the standard from criminal intent in these cases to things that are easier to prove, such as negligence, Senator Elizabeth Warren proposed in 2019 As part of her corporate executive responsibility act.

The purpose of these changes is not necessarily to allow more company executives (such as Holmes) to fill the prison, but to draw attention: When you consider how to treat the public, respect the law as you treat the law. Ask investors for large sums When checking.

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