Tuesday, January 17, 2017

Balleisen's "Fraud"

Many legal historians will be interested in the newly published Fraud: An American History from Barnum to Madoff (Princeton University Press), by Edward J. Balleisen, associate professor of history and public policy and vice provost for Interdisciplinary Studies at Duke UniversityFraud
examines the evolution of marketplace deceptions and anti-fraud policies in the United States from the early nineteenth-century to the present.  The book emphasizes that the worst business frauds have consistently clustered in economic sectors undergoing rapid technological or organizational change.  It also charts the gradual move away from a legal culture predicated on caveat emptor to one that gave investors and consumers greater protections, as well as the emergence of modern regulatory agencies with anti-fraud missions, at both the subnational and national levels.  At the same time, Fraud traces the evolving regulatory functions of non-state actors, like the press and private regulators like the American Better Business Bureaus.  Throughout, the book pays close attention to regulatory governance in action – how agencies operate on a day to day basis, and how businesses responded to their efforts.  This approach reveals a recurring tendency of anti-fraud institutions to develop modes of denying allegedly deceptive firms access to the marketplace through such policies as mail fraud orders, declarations that advertising is not in the public interest, and orders to prohibit firms from access to online payment systems.  Such policies inevitably bump up against American legal culture, prompting the fashioning of procedural protections that impose requirements of fairness at the expense of speed and effectiveness.  Fraud concludes with an extended consideration of the resurgent problem of business fraud during the deregulatory decades since the mid-1970s, an episode that underscores the importance of regulatory structures that provide fraud containment. 
Publisher’s Weekly:

“Balleisen shows how anti-fraud regulations were perennially weakened by Americans’ grudging admiration for clever con-men, industry lobbying, the doctrine of caveat emptor (the notion that buyers are responsible for avoiding scams), and fears that cracking down too harshly on fraudulent promises might dampen the investor enthusiasm powering the economy. Balleisen’s lucid, engagingly written mix of institutional and legal history, behavioral economics, and entertaining anecdotes illuminates this land of bilk and money”

Kirkus Reviews:

“Balleisen casts a gimlet eye on the passing parade of hucksters and charlatans, peppering a narrative long on theory with juicy asides that build toward a comprehensive catalog of ‘Old Swindles in New Jargon….’ Ranging among the disciplines of history, economics, and psychology, Balleisen constructs a sturdy narrative of the many ways in which we have fallen prey to the swindler, and continue to do so, as well as of how American society and its institutions have tried to build protections against the con. But these protections eventually run up against accusations of violating ‘longstanding principles of due process,’ since the bigger the con, the more lawyers arrayed behind it.”


"Often vivid and always thoughtful, this is a very important and impressive work by a rigorous, venturesome historian at the top of his game. When so much public debate about regulation is polemical and hyperbolic, Edward Balleisen has made a major contribution by writing a book that thoroughly, comprehensively, even-handedly, and engagingly examines the history of American fraud and its regulation from the early nineteenth century to today."--Daniel R. Ernst, Georgetown University Law Center

Professor Balleisen discusses the book here.