This Essay discusses the regulation of fraud in a developed economy and offers some explanations for why fraud appears to be on the increase. Ironically, regulation designed to combat fraud can actually increase fraud by attracting economic activity to fraud-ridden industries. In other words, regulation can create problems of its own by fostering the false perception that fraud is being addressed even when it is not. This analysis is relevant in the context of the current surge in sentiment to regulate cryptocurrencies in the wake of the FTX and Sam Bankman-Fried debacle. Such regulation threatens to attract more resources to cryptocurrency trading, which is a dubious proposition in light of the fact that cryptocurrencies produce little social value and merely transfer wealth rather than create it.
The Essay discusses some of the reasons why fraud may be on the increase. First, strong market forces aimed at reducing managerial agency costs have had the unintended consequence of increasing the incentives of top corporate managers to commit fraud. The market forces both richly reward managers for generating strong returns for shareholders and severely punish managers for failing to reach investors’ expectations regarding corporate performance. While these rich rewards and strong punishments serve the interests of shareholders and society, they also enhance executives’ incentives to commit fraud.
Another factor in the increase in fraud in financial markets has been the expansion of the concept of fraud. Historically, the term fraud was used to describe conduct that was truly egregious and involved purposeful deceit designed to provide the perpetrator with unlawful gains. As shown here, however, in the financial context the concept of fraud has been expanded to include behavior that is entirely inadvertent and benign. The expansion of the concept of fraud threatens to increase the incidence of traditional fraud by depriving the term “fraud” of its historic capacity for shaming because the prospect of being shamed is a significant deterrent to committing fraud.
Jonathan R. Macey,
Fraud in a Land of Plenty,
Nw. U. L. Rev.