1. "Just following orders" isn't now and has never been a valid excuse

2. Go after the coercers or modify our understanding of liability to allow those targeted to make the argument that their superiors deserve to repay them every bit of penalty they owed.

Really, in the modern world, just sue someone and tell them they're on the hook but they'll be allowed to sue whoever is responsible for their portion of the responsibility and watch this all work itself out quickly.

Edit: They made a minor settlement and there was a lawsuit that got a tiny amount of press.

http://time.com/42322/steve-jobs-chilling-response-after-get...

Edit 2: there was not even a slap on the wrist legally speaking:

"The proposed settlement, which if accepted by the court will be in effect for five years, prohibits the companies from engaging in anticompetitive no solicitation agreements. "

Yes it is, see: https://definitions.uslegal.com/c/corporate-immunity/

That said..I agree with the spirit of your post. The only officers that cannot receive corporate immunity are the CEO and CFO - they can be held liable in criminal and civil litigation.

Hypothetically: A person at Apple might not know why they can't hire someone from Google. For all they know it could have been ordered over apple trying to steal Google trade secrets as part of a settlement. Lots of possible reasons why it could be legal. The employee just does not necessarily have the knowledge. So they could make a defense that assumed their employer was acting in good faith.

It's pretty much impossible to prove good faith in the instances of death, and theft. Generally, such things are reserved for governments either through war or (criminal executions) or property seizure. If your employer was the government you may be able to make a good faith defense if it was related to your job and it turns out the government was violating the law.

Also keep mind it's a defense not an immunity. Also the more severe action the harder it is for there to be a lawful reason. There are very few instances were someone could legally kill someone vs not hire someone. It's like orders of magnitude different.

Why aren't those who are tasked with enforcing the law enforcing the law?

That's not true. Just look at Lt. William Calley.

He didn't serve additional time due to other technical issues in his prosecution.

"Howard Callaway, Secretary of the Army, was quoted in The New York Times in 1976 as stating that Calley's sentence was reduced because Calley honestly believed that what he did was a part of his orders—a rationale that contradicts the standards set at Nuremberg and Tokyo, where following orders was not a defense for committing war crimes.[98]"

[98] Marshall, Burke; Goldstein, Joseph (2 April 1976). "Learning From My Lai: A Proposal on War Crimes". The New York Times. p. 26.

Sure sounds like an excuse to me. Now that I think about it, you're not splitting hairs, you're just flat out wrong at best.

So, excusing part of an action due to a coercion to follow actions is valid, but every time we talk about this scenario in the real world you're going to have more options, maybe you doubt your captor would actually shoot both of you - in that case shooting your friend is back to mostly being your decision - the issue occurs when this grey story is converted to black and white and people paint themselves falsely as being unwilling participants. In WW2 US soldiers could have refused when asked to participate in concentration camps, it would have been severely inconveniencing and that counts for something, but they chose the easy route and that is a perfectly valid guilt.

[1] There is a rather sound argument to be made that evil and culpability is a false construct and that we should refuse to punish any bad actors beyond the point of discouraging recidivism. If there is a common good that we all share as a "known truth" then deviations from that truth can be considered to be impairments about seeing the truth and comprehending it which would lead any deviations from that truth to be understood as a need to enlighten their view of the truth. It's quite an interesting philosophical path to head down.

> Guantánamo leadership wanted to understand the legal gymnastics that would be required to implement a program of their own. “Torture has been prohibited by international law, but the language of the statutes is written vaguely,”

and

> Bush Administration lawyers had taken the position that “enemy combatants” could be held indefinitely, without trials, and that in order for something to qualify as “torture” it “must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.”

[0] https://www.newyorker.com/magazine/2019/04/22/guantanamos-da...

The United States Senate ratified, and President Reagan signed the The U.N. Convention Against Torture, which states that “no exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.”

No amount of legal hand waving by the Bush administration can justify what was done.

Likewise, there is no excuse for the Obama administration refusing to prosecute the crimes that occurred.

As Obama put it, "We tortured some folks."

He just refused to prosecute those guilty of ordering and carrying out that torture, despite our treaty obligation to do so.

In other words, do you really think such people got off easy before the Nuremberg trials? If anything, much worse has happened to them throughout history, because the kings and dictators didn't have to put them through a judicial process.

[1] _sigh_ Oliver North, honestly America... why did you never... eh.

Remember, Guantanamo also had taxi drivers and aid workers in it. How many of them are you willing to torture in order to find the terrorist you've captured and maybe get some information that might help stop a future terrorist plot? The hypothetical of capturing a top general with a tight deadline provides a terrible intuition when it comes to torture.

But that is exactly the kind of intuition Rumsfeld et al wanted people to be thinking about, in order to justify torture^W enhanced interrogation techniques.

> The answer isn't grey, it's black and white. The answer is always YES to doing what it takes to save one's family.

You didn't really need to make such an absolute point, but you did.

Right, so you bring in Hanns Scharff.

They end up taking credit when things go well, and they might look bad when things go poorly, but they essentially never get held criminally liable. Nice work if you can get it.

Think of a group of friends who go out for dinner. When the group grows, you generally need to set rules to avoid folks stuffing on tips or itemizing their bill to save a buck.

Usually when a group grows to a certain size, somebody will decide that rather than chipping in $30, because they "just had a salad", they'll toss in $12.95 for the salad, skip tax and tip and disappear.

I am fascinated by the way "fitness landscapes" manifest in companies OUTSIDE the financial fitness of the company's trade. People often act like trade fitness is the only realm where we compete in capitalism, but there are so many more.

Moat fitness for a company doesn't benefit their trade at all. Customers don't benefit when you kill a competitor, but you do.

Similarly PowerPoint doesn't benefit the customer or the business. It's a tool for employee theater, using it makes employees appear less fit to be fired.

And I like your point that unaccountability fitness is also an existential competition for executives.

I wish there were a big list of these for me to ponder.

This becomes more stark when you compare powerpoint with another part of Microsoft Office: Excel. Excel is actually amazing software. Innumerable small businesses are basically run through Excel. Excel is truly user empowering software that lets lay-people exploit the power of their computer to solve real problem.

Compared to Excel, powerpoint is just sad. In theory it keeps people in the audience of any presentation awake, but in reality it fails at even that. Excel empowers users to solve problems, while powerpoint is little more than an emotional crutch for people who are nervous in front of crowds.

The problem with PP is not PP, but that most people do not know how to give a presentation.

It has other uses but... Have you not seen what I describe? That would be a useful data point for me if true.

Where I work Power Point is mainly used to make presentations that are easy to read on a projector screen (as it should be used).

On many places it seems to be used as a general document writer application ... so what we emotionaly associate with Power Point might differ alot.

This idea overwhelms me when I read the newest filings and indictments of pharmaceutical companies in the opioid crisis. A corporation, fundamentally, cannot "learn lessons" like people do. It is a collection of incentives, with men inside directed or manipulated by those incentives. If gently nudging 47,000 people a year to kill themselves with overdoses would create more revenue for the corporation, after lawsuit settlements, than not, they would likely do it all over again. Even if you change the men making the decisions - "Finding more moral men" is not a plan.

Executives must have skin in the game, because the possible upside to their career at the highest levels of American business are too great to hope they'll take a moral stand. The potential upside for Richard Sackler, and John Kapoor, and Steve Jobs is so high (Massive bonuses, stock prices), and the potential downside so low (They are fired, with a generous golden parachute), they are willing to take the chance they'll get away with it. The most likely outcome is that attorneys will get rich, and nothing much else.

The only solution to †his type of white collar crime and leadership malfeasance is to make executives, the individual human beings, feel a tinge of reptilian fear in their gut that they may go to prison and the livelihood of their families could be put in danger.

I couldn't agree more, and that analysis applies to all systems of human interaction, not just corporations. I wish people would use that framework to understand everything, specifically government.

In the interim I would be willing to settle on significant punitive damages. Eg. Make getting caught very expensive and those corporate nudges will start nudging in the directions of protecting employees, consumers, etc.

if we're all whistleblowers, people high up the chain will fear having the whistle blown on them. don't just leak illegal things, leak immoral things.

grassroots transparency. do it anonymously if you have to. hold your bosses accountable.

But bringing charges against a company is important. Boards of directors are supposed to, well, direct the executives, not look the other way while they break the law and abuse their employees.

The way to encourage this is to hit the company, hard, right in the wallet.

But if I only get to choose one to charge, I go the individual route any day of the week because it reduces/removes the moral hazard of getting to shift your criminal activity to an intangible, legal entity like a corporation. Sure, you'd never get the $435M settlement from these people, but once everyone knows the government is coming after them personally, I would bet my last dollar that this type of crap virtually never happens again.

How do they enforce this agreement?

Reminds me of Phoebous cartel agreeing to produce lightbulbs below certain lifetime. https://en.wikipedia.org/wiki/Phoebus_cartel

https://www.engadget.com/2014/03/24/emails-reveal-that-steve...

https://www.cultofmac.com/316682/how-steve-jobs-reacted-when...

>If this was a couple of small, local competitors who were the only two [whatever] in the area and they did this, I guarantee you the owners would be individually indicted.

No. 100% NO. I guarantee you that the regulators wouldn't care. And if they did care, the 'local competitors' would get AT BEST a slap on the wrist like a strongly worded letter with a time-frame or MAYBE a fine (if that). There would be no indictments.

I work with regulators all the time (FDA, Health Canada), and they will work with you to get you under compliance. Consider the fact that all companies are under a large amount of legal and regulatory constraints and chances are every company is doing something against some law or some regulation (knowingly or unknowingly), and you can see that as long as what you did didn't result in undue hardship (though I'm sure you'll try to claim that this was an egregious action - I disagree) and you fix your behaviour, you'll be fine.

Unless of course an indictment is the politically determined goal. E.g. that one small Chinese bank that got screwed for the lending bubble that popped in '08.

Sure, as long as they are doing so in good faith. An act like this is clearly not in any sort of good-faith attempt to be in compliance with the law. It's obviously illegal. I would expect (hope?) that regulators and law enforcement would act swiftly and with much more than strongly worded letters and small fines for anyone who does this.

Yes, you are correct that I would definitely claim that this was an egregious action. If people are conspiring to limit the employment prospects and potential income of others and are doing so in a manner that violates the law - yeah that's pretty f'ed in my book and they should, in my opinion, be subject to the harshest punishment the law allows for these instances.