Open Access. Powered by Scholars. Published by Universities.®
Vanderbilt University Law School
Vanderbilt Law School Faculty Publications
Rule of law; human behavior; fiat; criminal intent; criminal law theory; regulation; structure; tax evasion
Articles 1 - 1 of 1
Full-Text Articles in Law
Structural Laws And The Puzzle Of Regulating Behavior, Edward K. Cheng
Structural Laws And The Puzzle Of Regulating Behavior, Edward K. Cheng
Vanderbilt Law School Faculty Publications
This Article offers a new way of thinking about over criminalization. It argues that in regulating behavior, legislatures have relied excessively on statutory prohibitions and ex post enforcement by police and prosecutors. Regulation by "fiat" alone is often inadequate; proscriptive laws need accompanying structural ones that can cabin behavior and help alter existing social norms. After developing a theoretical framework for distinguishing "fiat" from "structure," the Article tackles the puzzling question why legislatures persist in focusing almost exclusively on fiat-based measures despite the availability of more effective structural ones. The answer turns out to be surprisingly complex, ranging from institutional …