Editor’s note: Compliance Week is thrilled to honor Tamar Frankel for Lifetime Achievement in Compliance at the 2022 Excellence in Compliance Awards. Frankel, who worked 50 years as a law professor at Boston University, has authorized Compliance Week to share excerpts from her book “Institutional Self-Regulation.” Below is a passage from the book’s chapter on institutional subversive culture, ethics, power, and behavior.
It is difficult to identify the point at which a slippery slope starts. Almost every step taken could be the beginning of a slippery slope. The slide is not an even process; it does not proceed at the same pace or in the same depth if it continues to be practiced.
The longer the slide is practiced, the more pernicious it becomes and the faster it is likely to move toward more conscious and bold fraud. In fact, the more it continues, the more the actions become a habit and the less likely they are to weigh on one’s conscience.
A habit develops. Habits relieve people from evaluating the pros and cons of their actions. People greet each other in the same way without weighing advantages and disadvantages, unless these become unique and important.
Thus, the repeated act of taking something from the office and using it at home, without recording the taking, can become a habit; it becomes less painful every time. If the activity produces benefits and is not discovered, there is a chance that it will be done again and later without giving it a thought. The next step, however, is likely to be an activity that involves a greater amount or a faster action. That may require a more conscious decision, but less than the first step. The new activity, however, may add speed and quantity of the sliding.
Further, habits can be good just as they can be destructive. Yet, in contrast to the habit of picking one’s nose or slurping one’s soup, there are habits that can destroy life. Red wine is good for you. It has antitoxins. But if it reduces the anxieties of the day or the hurt feeling of the moment, that relaxation can bring a craving that may end as alcoholism.
Thus, habits can be destructive, if they are deeply embedded to prevent changes with the changing environment. But learning and knowing too many alternatives can prevent people from taking any action. Institutions are structured, and, by definition, cannot change easily with a fast-changing economy and external circumstances. Then they might have to change their size, to break down some large units, but there are pressures against doing that for personal and cost reasons. Yet, continuing to do “what we have always done” in a changing environment can be very difficult.
One starting point: Our own personality
We may wish to learn more about people’s dreams, personalities, preparedness for hardships, the way hardship is addressed, and their environment. Sometimes, the changing environment brings about the beginning of a slippery slope.
EF Hutton, the renowned brokerage firm, faced a relatively sudden change in its environment. First, fixed trading fees were eliminated, and then competitive fees arose. EF Hutton became too expensive, but its management and its brokers did not wish to change their positions and sought the easier way to maintain earnings. In fact, the danger today could be greater than in the past because today’s environment may change even faster and in an unexpected way.
What solutions are available?
If individuals organize, they must choose reliable representatives. The representatives are subject to the same temptations as governing representatives are. They may coalesce with the other representatives rather than represent their constituencies. This system becomes a vicious circle.
Balance of power and competition can reduce the power of one or more of the competitors. However, the system then retains less of the individuals’ interests and maintains less accountability to them. This is the balance between the powerful against the powerful in retaining power. The individuals do not play a role and are not counted in this struggle.
However, the individuals retain some power as well: They can exit, they can raise their voice in tandem and overrule the existing power holders, and they have the power to organize and create a true strong counterpower. This image may involve an exchange of power. However, this solution is problematic because exchange without constraints may lead to the same problems.
One suggestion is that the crucial part of trust is trusting the system rather than the people. In fact, the suggestion is: never trust people. Expose the people who hold public power and leave them with as little protection as possible. Expose them to the media as well as to other transparencies. Will this exposure lead to public lynching? If so, limit this power by other protective mechanisms to retain their power.
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