Law Commons^™

Abandoned Criminal Attempts: An Economic Analysis, Murat C. Mungan

Faculty Scholarship

An attempt is 'abandoned' if the criminal, despite having a chance to continue with his criminal plan, forgoes the opportunity to do so. A regime that makes abandonment a defense to criminal attempts provides an incentive to the offender to withdraw from his criminal conduct prior to completing the previously intended offense. However, the same regime may induce offenders to initiate criminal plans more often by reducing the expected costs associated with such plans. The former effect is called the marginal deterrence effect and the latter is called the ex-ante deterrence effect of the abandonment defense. This Article formalizes a …

Standing In The Way Of The Ftaia: Exceptional Applications Of Illinois Brick, Jennifer Fischell

Michigan Law Review

In 1982, Congress enacted the Foreign Antitrust Trade Improvements Act (FTAIA) to resolve uncertainties about the international reach and effect of U.S. antitrust laws. Unfortunately, the FTAIA has provided more questions than answers. It has been ten years since the Supreme Court most recently interpreted the FTAIA, and crucial questions and circuit splits abound. One of these questions is how to understand the convergence of the direct purchaser rule (frequently referred to as the Illinois Brick doctrine) and the FTAIA. Under the direct purchaser rule, only those who purchase directly from antitrust violators are typically permitted to sue under section …

Arming Our Allies: The Case For Offensive Capabilities, Jakub Grygiel

The US Army War College Quarterly: Parameters

No abstract provided.

Bringing Fear To The Perpetrators – Humanitarian Cyber Operations As Evidence Gathering And Deterrence, Jan Kallberg

Jan Kallberg

Humanitarian cyber operations would allow democratic states to utilise cyber operations as a humanitarian intervention to capture information and create a foundation for decision making for collective international action supported by humanitarian international law. This follows the legal doctrine of responsibility to protect, which relies first on the nation state itself but when the state fails to protect its citizens, then the international community can act ignoring the repressive or failed states national sovereignty. Another support for humanitarian cyber operations is the ability to capture evidence to support future prosecution for crimes against humanity. The weakest link in the chain …

Toward A Fundamental Right To Evade Law? The Rule Of Power In Shelby County And State Farm, Martha T. Mccluskey

Journal of Race, Gender, and Ethnicity

No abstract provided.

Addressing Demand For Sex Trafficking In Sweden And The United Kingdom: An Interpretive Policy Analysis Of Demand Reduction Policies, In Consideration Of The Principles Of Deterrence Theory, Katee Stahl

Masters Theses

In recent years, the problem of sex trafficking has migrated to the forefront of prostitution policy discussions, shifting the focus away from arguments surrounding the morality of prostitution, and instead, to consideration of the most effective prostitution policy approach to combat sex trafficking. One popular solution focuses on reducing the demand for sex trafficking by reducing the overall demand for prostitution. In order to reduce demand for prostitution, people must be deterred from purchasing sexual services, in any form, which may be accomplished by criminalizing the purchase of prostitution. The present inquiry will compare the demand reduction approaches of Sweden …

Admit Or Deny: A Call For Reform Of The Sec's "Neither-Admit-Nor-Deny" Policy, Priyah Kaul

University of Michigan Journal of Law Reform

For four decades, the SEC’s often-invoked policy of settling cases without requiring admissions of wrongdoing, referred to as the “neither-admit-nor-deny” policy, went unchallenged by the courts, the legislature, and the public. Then in 2011, a harshly critical opinion from Judge Jed Rakoff in SEC v. Citigroup incited demands for reform of this policy. In response to Judge Rakoff’s opinion, the SEC announced a modified approach to settlements. Under the modified approach, the Commission may require an admission of wrongdoing if a defendant’s misconduct was egregious or if the public markets would benefit from an admission. Many supporters of the neither-admit-nor-deny …

The Upside-Down Inequitable Conduct Defense, Tun-Jen Chiang

Northwestern University Law Review

“Inequitable conduct” is a patent law doctrine that renders a patent unenforceable when the patentee is found to have acted improperly before the U.S. Patent and Trademark Office. It is widely reviled and frequently criticized for being draconian: the Federal Circuit has famously called the doctrine an “absolute plague” that terrorizes patent owners. Responding to the concern about overdeterrence, the Federal Circuit has repeatedly narrowed the doctrine.

This Article takes a different perspective. The conventional wisdom is correct enough in arguing that the inequitable conduct doctrine sometimes produces overdeterrence. What has been overlooked, however, is the fact that the doctrine …

Better Bounty Hunting: How The Sec's New Whistleblower Program Changes The Securities Fraud Class Action Debate, Amanda M. Rose

Northwestern University Law Review

No abstract provided.

Toward A Fundamental Right To Evade Law? Protecting The Rule Of Unequal Racial And Economic Power In Shelby County And State Farm, Martha T. Mccluskey

Journal Articles

To rationalize its ruling on voting rights, Shelby County, Alabama v. Holder develops a constitutional vision of passivity in the face of institutionalized power to violate the law. This essay compares Shelby County to State Farm Mutual Automobile v. Campbell, a 2003 Supreme Court ruling involving a different subject area, state punitive damage awards. In both, the Court asserts newly articulated judicial power to override other branches, not to protect human rights, but rather to expand institutionalized immunity from those rights. On the surface, the Court’s rejection of state sovereignty in State Farm (protecting multistate corporations from high punitive damages) …

Extent Of Cooperative Enforcement: Effect Of The Regulator-Regulated Facility Relationship On Audit Frequency, Dietrich Earnhart, Robert L. Glicksman

GW Law Faculty Publications & Other Works

A spirited debate explores the comparative merits of two different approaches to the enforcement of environmental law: the noncooperative approach, which emphasizes the deterrence of noncompliance through inflexibly imposed sanctions, and the cooperative approach, which emphasizes the inducement of compliance through flexibility and assistance. Both scholarly and policymaking communities are interested in this topic of enforcement approach within the realms of finance, tax compliance, occupational safety, food and drug safety, consumer product safety, and environmental protection, among others. To inform this debate, our study explores enforcement of environmental protection laws where the debate has been especially spirited yet lacking in …

A Philosophical Analysis Of California Determinate Sentencing, Three Strikes, And Realignment, Madeline Stein

CMC Senior Theses

This thesis explores the relationship between philosophy and policy in the context of three California policies, Determinate Sentencing, Three Strikes, and Realignment. The philosophy portion includes theories of retribution, deterrence, and rehabilitation, focusing on the tensions and conflicts within them.

Form Vs. Function In Rule 10b-5 Class Actions, Amanda M. Rose

Vanderbilt Law School Faculty Publications

The Supreme Court’s widely anticipated decision last term in Halliburton Co. v. Erica P. John Fund, Inc. did little to change the fundamental landscape of securities fraud litigation in the United States. Rule 10b-5 class actions premised on the “fraud-on-the-market” presumption of reliance may still be brought, although it is now clear that defendants may present evidence of lack of price distortion to rebut that presumption at the class certification stage. Halliburton does, however, raise a variety of new questions that will keep plaintiffs’ lawyers and defense counsel fighting for years to come. Determining the answers to these questions will …

Discounting And Criminals' Implied Risk Preferences, Murat C. Mungan, Jonathan Klick

All Faculty Scholarship

It is commonly assumed that potential offenders are more responsive to increases in the certainty than increases in the severity of punishment. An important implication of this assumption within the Beckerian law enforcement model is that criminals are risk-seeking. This note adds to existing literature by showing that offenders who discount future monetary benefits can be more responsive to the certainty rather than the severity of punishment, even when they are risk averse, and even when their disutility from imprisonment rises proportionally (or more than proportionally) with the length of the sentence.

Party Autonomy In Tort Theory And Reform, Christopher Robinette

Christopher J Robinette

Crime And Punishment, A Global Concern: Who Does It Best And Does Isolation Really Work?, Melanie M. Reid

Melanie M. Reid