America’s Anti-Fraud Ecosystem and the Problem of Social Trust: Perspectives from Legal Practitioners

Balleisen, Edward J. | August 27, 2023

This contribution revives an autobiographical genre present in law reviews roughly a half-century ago, in which seasoned legal practitioners offered perspective on vital issues. Here, a senior deputy attorney general, a former federal prosecutor, a corporate defense attorney, and a legal aid lawyer each draw on their career experience to explore what they see as significant problems related to the law of consumer and investor fraud and the nature of consumer and investor trust. Their reflections emphasize the significance of law in action—how key actors seek to deploy legal mechanisms related to fraud and adjust their strategies in light of institutional changes, with powerful implications for legal culture and the practical workings of the legal system. They also offer sometimes conflicting recommendations for how American law might better respond to the enduring, thorny problem of deception in marketplaces. The practitioners all agree about the importance of leveraging data analytics to focus attention on the most problematic practices and firms, as well as the need to design disclosure rules that take behavioral realities into account. But there is instructive disagreement about the extent to which current rules appropriately balance the capacity of individuals who have experienced fraud-related harms to gain redress, against the imperative of shielding innocent firms from abusive allegations of wrongdoing. A brief analytical introduction emphasizes the advantages of an ethnographic approach as a means of understanding both positive and normative dimensions of fraud law.