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Regulation, Prohibition, And Overcriminalization: The Proper And Improper Uses Of The Criminal Law, Paul J. Larkin, Jr.
Regulation, Prohibition, And Overcriminalization: The Proper And Improper Uses Of The Criminal Law, Paul J. Larkin, Jr.
Hofstra Law Review
The function of the criminal law is to effectively enforce the moral code that every person knows by heart — to enforce the minimum substantive content of the social compact by bringing the full moral authority of government to bear on violators. By contrast, the function of the regulatory system is to efficiently manage components of the national economy using civil rules, rewards, and penalties to incentivize desirable behavior without casting aspersions on violations attributable to ignorance or explanations other than defiance. Treating regulatory crimes as if they were no different than “street crimes” ignores the profound difference between the …
The High Cost Of Low Sanctions, Irina D. Manta
The High Cost Of Low Sanctions, Irina D. Manta
Hofstra Law Faculty Scholarship
Low sanctions can initially appear to be a mitigating factor for unjust or inefficient laws, but this perception is likely wrong. This Article argues that low sanctions may have a pernicious effect on the democratic process and on legislative rule making because, as both public choice theory and historical precedent suggest, the laws accompanying these sanctions are more likely to perpetuate themselves and become part of the unquestioned background fabric of society. This Article focuses on intellectual property law (in particular, copyright) and examines the progression of suboptimal laws through widespread low sanctions that may mostly escape the public eye …