Politics, Society

Shenanigans! On the public and communal regulation of fraud

In episode #213 of South Park, “Cow Days”, Kyle attempts to declare “Shenanigans” on a carny for a rigged game.

Kyle publicly calls attention to a game that is posing as fair but is really not.

The idea of “Shenanigans” has a real appeal, I think: the notion that a citizen can confront a fraudulent business and get an instant response from authorities. Currently, citizens have to go through hoops before police will care, if they ever will. In fact, usually people are better off with media programs like Marketplace or with anti-fraud NGOs.

So the question is, can this be turned into a law?

Declaring Shenanigans

Following both the spirit of the episode and also, I think, an important underlying notion in the concept is that “Shenanigans” must be declared publicly. This has obvious problems when dealing with the most common fraud right now – telefraud and efraud – but we will get to that issue in time.

For the moment, lets deal with the basic concept: a person must stand outside of the business, in public on public property, and say, as loud as possible, “Shenanigans!” or “I declare Shenanigans!”. Preferably this should be done in sight of a police officer – which would of course require better community policing strategies in most communities, but that is the subject of another post – but I guess if it can’t be then it must be done in sight of multiple people to be used as witnesses – but really a police officer should be necessary.

The reason to have this public requirement is to connect the declaration with a public act: people will know it was you who declared Shenanigans. Many of us have a problem speaking up in public and so this will require us to be very serious about making such a declaration. For those who have no problem speaking up in public or who are likely to abuse this, well, we’ll get to that.

Responding to a declaration of Shenanigans

The business (or, conceivably, the private citizen) then has two choices:

  • Accept the Declaration of Shenanigans or
  • Dispute the Declaration.

Accepting Shenanigans commits the business and the declarer to a non-adversarial but binding arbitration hearing with an arbiter or mediator. This process it necessary to avoid misunderstandings and, far more importantly, to try to find some kind of non-litigious (lawyers shouldn’t be allowed to be present) solution to most cases of petty fraud and dishonest business practices.

Disputing Shenanigans involves the police automatically. If the business disputes the declaration then the police investigate to see if there has been any violation of criminal law.

But the police investigate both the declarer and the target business (or private citizen).

Investigating Shenanigans

If the police find that there does seem to be some kind of evidence of fraud (or some other crime) then they investigate and possibly pursue criminal charges.

If the police find that there is no evidence or not enough evidence of intentional fraud or deception (or some other crime) and they find that the declarer honestly believed there was fraud, then everything is dropped. There is no permanent record of a Shenanigans Declaration.

If the police find that the declarer did so for the wrong reasons (personal vendetta, hi-jinks, or anything else that doesn’t appear to fit the requirements for Shenanigans – yes that would be very difficult to legislate) then Shenanigans is thereby declared on the declarer and obstruction of justice charges (or worse) can then be sought. This would hopefully prevent much (hardly all) of the abuse likely with the ability to declare Shenanigans.

Problems with a Shenanigans law

There are numerous problems but a number stick out immediately:

  • Most fraud is committed over the phone or over the internet now. How could we possibly have a public declaration of Shenanigans when the business address is unknown or inaccessible?
  • Even with the threat of obstruction of justice, some people (perhaps many) will declare Shenanigans for the wrong reasons, perhaps too many people, and this will tie up arbiters and police and waste everyone’s time and money. Such problems could outweigh any perceived benefits.
  • How many people honestly live close enough to the offices of the businesses they buy from in this day and age?

This very brief sketch illustrates the issues with legislating ideas that seem brilliant in theory.

I think there is a lot to be said to try to re-localize the execution of justice – at least to some extent – to help move society away from the overly litigious system we have now, towards something with fewer law suits and more of an emphasis on the socio-economic factors which can help prevent crime rather than focusing on punishment. (And when it comes to punishment, attempting to implement different ways of punishing offenders than just building prisons: in my book I briefly discuss attempting to include a forgiveness process in the judicial system.)

But everything needs to be thought out thoroughly with always with an eye to the possible side-effects of such a movement.

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