Readers of this blog know that I am critical of several recent “popular” prosecutions of business executives, and this NY Times article reports on the opinions of several experts who agree with my view:

“It is exaggerated to say that there is much more corporate malfeasance than in the past,” said Luigi Zingales, a professor of economics at the University of Chicago. “Malfeasance is just more likely to be revealed in recessions.”

“Prosecutors are going after white-collar crime with an eagerness we hadn’t seen before,” said James D. Cox, a professor of law at Duke University. “The state attorneys general realized that the governor-in-waiting, otherwise known as the attorney general, can get a lot of headlines.”

“In a bubble, people want to be lied to,” said John C. Coffee Jr., a professor at Columbia Law School. “It was more than a conflict of interest – securities analysts boosted stocks because people wanted them to.”

The article concludes by noting that the investing public’s attitudes often changes with which way the investing winds are blowing, and that such changes have an effect on the resulting prosecutions of business executives:

[W]hen the market went south, . . . faith in self-regulation took a beating, and new regulations like the Sarbanes-Oxley rules for corporate governance were passed. Suddenly less prosperous, Americans became much more willing to catch and punish abuses, and admiration for high fliers turned to suspicion.
“The social dynamics are sometimes more important than the law,” Mr. Coffee said.

And we should all be concerned about that. For when we allow the law to be twisted to appeal to the “social dynamics” of a particular situtation, then the law becomes just another convenient political tool and the rule of law erodes.
And for those who would respond — “So what? What’s the problem with eroding the rule of law a bit to nail some greedy business executives?” — I would remind them of Thomas More’s advice to his son-in-law-to-be Will Roper from A Man for All Seasons:

“Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down — and you’re just the man to do it, Roper! — do you really think you could stand upright in the winds that would blow then?”
“Yes, I’d give the Devil the benefit of law, for my own safety’s sake!”