Friday, April 9, 2010

Conscious Avoidance - The Concept

The confluence of three events moved me to put some material on the blog about the legal concept conscious avoidance. Briefly stated, the concept permits conviction for crimes, such as tax crimes, requiring specific intent to violate a known legal duty if the defendant consciously chose not to know his or her legal duty. This may seem contradictory, but stick with me on this.

First the events that led me here today:

1. I was reading an article two days ago that led me to the following quote from Upton Sinclair: “It is difficult to get a man to understand something when his salary depends upon his not understanding it.”

2. Yesterday, I listened to a presentation on the Forum Network by John Cassidy on his recent book titled How Markets Fail: The Logic of Economic Calamaties (Farrar, Straus and Giroux: Nov. 10, 2009).

3. Third I reviewed some articles (New York Times version here) on the testimony yesterday by Charles Prince and Robert Rubin, top executives of Citibank, dealing with the phenomenon of how these very smart, highly compensated people at the top failed to manage the risks that very smart, highly compensated people should have managed but did not because, perhaps (and some might say, probably), their compensation depended upon their ignorance or avoidance of conscioiusness of the risks. (Note that Cassidy deals with that phenomenon in respect to Prince and Rubin at Citibank.)

All of this led me back to the issue the concept of conscious avoidance. I therefore updated my materials from my Federal Tax Crimes book and am posting here the updated section on conscious avoidance. Most experienced practitioners know this stuff instinctively, but students and new practitioners might find something useful in the posted section.

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