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Full-Text Articles in Law

Assessing The International Criminal Court, Beth A. Simmons, Mitchell Radtke, Hyeran Jo Jan 2018

Assessing The International Criminal Court, Beth A. Simmons, Mitchell Radtke, Hyeran Jo

Faculty Scholarship at Penn Carey Law

One of the most important issues surrounding international courts is whether they can further the dual causes of peace and justice. None has been more ambitious in this regard than the International Criminal Court (ICC). And yet the ICC has been the object of a good deal of criticism. Some people claim it has been an expensive use of resources that might have been directed to other purposes. Others claim that its accomplishments are meager because it has managed to try and convict so few people. And many commentators and researchers claim that the Court faces an inherent tension between …


Mapping American Criminal Law: Variations Across The 50 States: Chapter One: Distributive Principles Of Criminal Law, Paul H. Robinson, Tyler Scot Williams Jan 2018

Mapping American Criminal Law: Variations Across The 50 States: Chapter One: Distributive Principles Of Criminal Law, Paul H. Robinson, Tyler Scot Williams

Faculty Scholarship at Penn Carey Law

This first chapter from the recently published book Mapping American Criminal Law: Variations across the 50 States documents the alternative distributive principles for criminal liability and punishment — desert, deterrence, incapacitation of the dangerous — that are officially recognized by law in each of the American states. The chapter contains two maps visually coded to display important differences: the first map shows which states have adopted desert, deterrence, or incapacitation as a distributive principle, while the second map shows which form of desert is adopted in those jurisdictions that recognize desert. Like all 38 chapters in the book, which covers …


Strict Liability's Criminogenic Effect, Paul H. Robinson Jan 2017

Strict Liability's Criminogenic Effect, Paul H. Robinson

Faculty Scholarship at Penn Carey Law

It is easy to understand the apparent appeal of strict liability to policymakers and legal reformers seeking to reduce crime: if the criminal law can do away with its traditional culpability requirement, it can increase the likelihood of conviction and punishment of those who engage in prohibited conduct or bring about prohibited harm or evil. And such an increase in punishment rate can enhance the crime-control effectiveness of a system built upon general deterrence or incapacitation of the dangerous. Similar arguments support the use of criminal liability for regulatory offenses. Greater punishment rates suggest greater compliance.

But this analysis fails …


Can The International Criminal Court Deter Atrocity?, Hyeran Jo, Beth A. Simmons Mar 2016

Can The International Criminal Court Deter Atrocity?, Hyeran Jo, Beth A. Simmons

Faculty Scholarship at Penn Carey Law

Whether and how violence can be controlled to spare innocent lives is a central issue in international relations. The most ambitious effort to date has been the International Criminal Court (ICC), designed to enhance security and safety by preventing egregious human rights abuses and deterring international crimes. We offer the first systematic assessment of the ICC's deterrent effects for both state and nonstate actors. Although no institution can deter all actors, the ICC can deter some governments and those rebel groups that seek legitimacy. We find support for this conditional impact of the ICC cross-nationally. Our work has implications for …


Self-Defense: Tell Me Moore, Kimberly Kessler Ferzan Jan 2016

Self-Defense: Tell Me Moore, Kimberly Kessler Ferzan

Faculty Scholarship at Penn Carey Law

Although Michael Moore has theorized much of the criminal law, he has left self-defense virtually untouched. This festschrift chapter sets forth the current debates within self-defense theory. It then pieces together Moore’s views about these puzzles, arguing that Moore adopts a distributive view of self-defense whereby an innocent victim may redistribute harm to its culpable or innocent cause. The chapter then questions some of Moore’s claims, including how Moore grounds the self-defensive right against innocent aggressors and threats, whether self-defense is best viewed as a mechanism for harm distribution, and whether Moore needs something like the forfeiture concept that he …


Portmanteau Ascendant: Post-Release Regulations And Sex Offender Recidivism, J. J. Prescott Jan 2016

Portmanteau Ascendant: Post-Release Regulations And Sex Offender Recidivism, J. J. Prescott

Articles

The purported purpose of sex offender post-release regulations (e.g., community notification and residency restrictions) is the reduction of sex offender recidivism. On their face, these laws seem well-designed and likely to be effective. A simple economic framework of offender behavior can be used to formalize these basic intuitions: in essence, post-release regulations either increase the probability of detection or increase the immediate cost of engaging in the prohibited activity (or both), and so should reduce the likelihood of criminal behavior. These laws aim to incapacitate people outside of prison. Yet, empirical researchers to date have found essentially no reliable evidence …


Identifying Criminals’ Risk Preferences, Murat C. Mungan, Jonathan Klick Jan 2016

Identifying Criminals’ Risk Preferences, Murat C. Mungan, Jonathan Klick

Faculty Scholarship at Penn Carey Law

There is a 250 year old presumption in the criminology and law enforcement literature that people are deterred more by increases in the certainty rather than increases in the severity of legal sanctions. We call this presumption the Certainty Aversion Presumption (CAP). Simple criminal decision making models suggest that criminals must be risk-seeking if they behave consistently with CAP. This implication leads to disturbing interpretations, such as criminals being categorically different than law abiding people, who often display risk-averse behavior while making financial decisions. Moreover, policy discussions that incorrectly rely on criminals’ risk attitudes implied by CAP are ill-informed, and …


The Opening Of American Law: Neoclassical Legal Thought, 1870-1970: Epilogue, Herbert J. Hovenkamp Feb 2015

The Opening Of American Law: Neoclassical Legal Thought, 1870-1970: Epilogue, Herbert J. Hovenkamp

Faculty Scholarship at Penn Carey Law

The Opening of American Law examines changes in American legal thought that began during Reconstruction and the Gilded Age, and extending through the Kennedy/Johnson eras. During this period American judges and legal writers embraced various conceptions of legal "science," although they differed about what that science entailed. Beginning in the Gilded Age, the principal sources were Darwinism in the biological and social sciences, marginalism in economics and psychology, and legal historicism. The impact on judicial, legislative, and later administrative law making is difficult to exaggerate. Among the changes were vastly greater use of behavioral or deterrence based theories of legal …


Forfeiture Of Illegal Gains, Attempts And Implied Risk Preferences, Murat C. Mungan, Jonathan Klick Jan 2014

Forfeiture Of Illegal Gains, Attempts And Implied Risk Preferences, Murat C. Mungan, Jonathan Klick

Scholarly Publications

In the law enforcement literature there is a presumption—supported by some experimental and econometric evidence—that criminals are more responsive to increases in the certainty than the severity of punishment. Under a general set of assumptions, this implies that criminals are risk seeking. We show that this implication is no longer valid when forfeiture of illegal gains and the possibility of unsuccessful attempts are considered. Therefore, when drawing inferences concerning offenders’ attitudes toward risk based on their responses to various punishment schemes, special attention must be paid to whether and to what extent offenders’ illegal gains can be forfeited and whether …


A Behavioral Justification For Escalating Punishment Schemes, Murat C. Mungan Jan 2014

A Behavioral Justification For Escalating Punishment Schemes, Murat C. Mungan

Scholarly Publications

The standard two-period law enforcement model is considered in a setting where individuals usually, but not exclusively, commit crimes only after comparing expected costs and benefits. Where escalating punishment schemes are present, there is an inherent value in keeping a clean criminal record; a person with a record may unintentionally become a repeat offender if he fails to exert self-control, and be punished more severely. If the punishment for repeat offenders is sufficiently high, one may rationally forgo the opportunity of committing a profitable crime today to avoid being sanctioned as a repeat offender in the future. Therefore, partial deterrence …


Moral Touchstone, Not General Deterrence: The Role Of International Criminal Justice In Fostering Compliance With International Humanitarian Law, Chris Jenks Jan 2014

Moral Touchstone, Not General Deterrence: The Role Of International Criminal Justice In Fostering Compliance With International Humanitarian Law, Chris Jenks

Faculty Journal Articles and Book Chapters

This article contends that international criminal justice provides minimal general deterrence of future violations of international humanitarian law (IHL). Arguments that international courts and tribunals deter future violations – and that such deterrence is a primary objective – assume an internally inconsistent burden that the processes cannot bear, in essence setting international criminal justice up for failure. Moreover, the inherently limited number of proceedings, the length of time required, the dense opinions generated, the relatively light sentences and the robust confinement conditions all erode whatever limited general deterrence international criminal justice might otherwise provide. Bluntly stated, thousands of pages of …


Corporate Actors, Corporate Crimes And Time-Inconsistent Preference, Manuel A. Utset Jan 2013

Corporate Actors, Corporate Crimes And Time-Inconsistent Preference, Manuel A. Utset

Scholarly Publications

No abstract provided.


Criminalizing Hacking, Not Dating: Reconstructing The Cfaa Intent Requirement, David Thaw Jan 2013

Criminalizing Hacking, Not Dating: Reconstructing The Cfaa Intent Requirement, David Thaw

Articles

Cybercrime is a growing problem in the United States and worldwide. Many questions remain unanswered as to the proper role and scope of criminal law in addressing socially-undesirable actions affecting and conducted through the use of computers and modern information technologies. This Article tackles perhaps the most exigent question in U.S. cybercrime law, the scope of activities that should be subject to criminal sanction under the Computer Fraud and Abuse Act (CFAA), the federal "anti-hacking" statute.

At the core of current CFAA debate is the question of whether private contracts, such as website "Terms of Use" or organizational "Acceptable Use …


Beccaria's On Crimes And Punishments: A Mirror On The History Of The Foundations Of Modern Criminal Law, Bernard E. Harcourt Jan 2013

Beccaria's On Crimes And Punishments: A Mirror On The History Of The Foundations Of Modern Criminal Law, Bernard E. Harcourt

Faculty Scholarship

Beccaria’s treatise "On Crimes and Punishments" (1764) has become a placeholder for the classical school of thought in criminology, for deterrence-based public policy, for death penalty abolitionism, and for liberal ideals of legality and the rule of law. A source of inspiration for Bentham and Blackstone, an object of praise for Voltaire and the Philosophies, a target of pointed critiques by Kant and Hegel, the subject of a genealogy by Foucault, the object of derision by the Physiocrats, rehabilitated and appropriated by the Chicago School of law and economics – these ricochets and reflections on Beccaria’s treatise reveal multiple dimensions …


Toward A Situational Model For Regulating International Crimes, Andrew K. Woods Jul 2012

Toward A Situational Model For Regulating International Crimes, Andrew K. Woods

Law Faculty Scholarly Articles

The international criminal regime, as currently conceived, relies almost exclusively on the power of backward-looking criminal sanctions to deter future international crimes. This model reflects the dominant mid-century approach to crime control, which was essentially reactive. Since then, domestic criminal scholars and practitioners have developed and implemented new theories of crime control—theories notable for their promise of crime prevention through ex ante attention to community and environmental factors. Community policing crime prevention through environmental design, and related "situational" approaches to crime control have had a significant impact on the administration of domestic criminal law.

This Article evaluates the implications of …


"Life Without Parole" Under Modern Theories Of Punishment, Paul H. Robinson Jun 2012

"Life Without Parole" Under Modern Theories Of Punishment, Paul H. Robinson

Faculty Scholarship at Penn Carey Law

Life without parole seems an attractive and logical punishment under the modern coercive crime-control principles of general deterrence and incapacitation, a point reinforced by its common use under habitual offender statutes like "three strikes." Yet, there is increasing evidence to doubt the efficacy of using such principles to distributive punishment. The prerequisite conditions for effective general deterrence are the exception rather than the rule. Moreover, effective and fair preventive detention is difficult when attempted through the criminal justice system. If we really are committed to preventive detention, it is better for both society and potential detainees that it be done …


Moral Judgments & International Crimes: The Disutility Of Desert, Andrew K. Woods Apr 2012

Moral Judgments & International Crimes: The Disutility Of Desert, Andrew K. Woods

Law Faculty Scholarly Articles

The international criminal regime exhibits many retributive features, but scholars and practitioners rarely defend the regime in purely retributive terms—that is, by reference to the inherent value of punishing the guilty. Instead, they defend it on the consequentialist grounds that it produces the best policy outcomes, such as deterrence, conflict resolution, and reconciliation. These scholars and practitioners implicitly adopt a behavioral theory known as the "utility of desert," a theory about the usefulness of appealing to people's retributive intuitions. That theory has been critically examined in domestic criminal scholarship but practically ignored in international criminal law.

This Article fills this …


The Penalties For Piracy: An Empirical Study Of National Prosecution Of International Crime, Eugene Kontorovich Jan 2012

The Penalties For Piracy: An Empirical Study Of National Prosecution Of International Crime, Eugene Kontorovich

Faculty Working Papers

This Article examines the sentences imposed by courts around the world in prosecutions of Somali pirates captured on the high seas. Somali piracy has become perhaps the highest-volume area of international criminal law by national courts. As with other international crimes, international law is silent on the subject of penalties. The large number of parallel prosecutions of offenders from a single international "situation" offers an empirical window into the interactions between international and national law in municipal courts; into factors affecting punishment for international crimes and the hierarchy of international offenses; and of course into potential concerns with the current …


Introduction: Benefits Of Private Enforcement: Empirical Background, Robert H. Lande Jan 2012

Introduction: Benefits Of Private Enforcement: Empirical Background, Robert H. Lande

All Faculty Scholarship

This short piece takes a first step toward providing the empirical bases for an assessment of the benefits of private enforcement. It presents evidence showing that private enforcement of the antitrust laws is serving its intended purposes and is in the public interest. Private enforcement helps compensate victimized consumers, and it also helps deter anticompetitive conduct. This piece demonstrates this by briefly summarizing a more detailed analysis of forty of the largest recent successful private antitrust cases.

To analyze these cases' compensation effects this presents, inter alia, the amount of money each action recovered, what proportion of the money was …


Do Sex Offender Registries Make Us Less Safe?, J. J. Prescott Jan 2012

Do Sex Offender Registries Make Us Less Safe?, J. J. Prescott

Articles

State legislatures enacted sex offender registration and notification (SORN) laws with the explicit and exclusive aim of reducing sex offender recidivism. The general idea that we ought to “regulate” released offenders — of any type — to reduce the likelihood of their returning to crime is an attractive one, at least in theory. Criminal recidivism generates significant social harm. Nevertheless, despite their now-widespread use, SORN laws became the norm without any systematic study of their consequences. Admittedly, the logic underlying these laws seems at first difficult to gainsay: if a known sex offender poses even a small risk to a …


Estimating The Deterrent Effect Of Incarceration Using Sentencing Enhancements, David S. Abrams Jan 2012

Estimating The Deterrent Effect Of Incarceration Using Sentencing Enhancements, David S. Abrams

Faculty Scholarship at Penn Carey Law

Increasing criminal sanctions may reduce crime through two primary mechanisms: deterrence and incapacitation. Disentangling their effects is crucial, since each mechanism has different implications for optimal policy setting. I use the introduction of state add-on gun laws, which enhance sentences for defendants possessing a firearm during the commission of a felony, to isolate the deterrent effect of incarceration. Defendants subject to add-ons would be incarcerated in the absence of the law change, so any short-term impact on crime can be attributed solely to deterrence. Using cross-state variation in the timing of law passage dates, I find that the average add-on …


Comparative Deterrence From Private Enforcement And Criminal Enforcement Of The U.S. Antitrust Laws, Robert H. Lande, Joshua P. Davis Jan 2011

Comparative Deterrence From Private Enforcement And Criminal Enforcement Of The U.S. Antitrust Laws, Robert H. Lande, Joshua P. Davis

All Faculty Scholarship

This article shows that private enforcement of the U. S. antitrust laws-which usually is derided as essentially worthless-serves as a more important deterrent of anticompetitive behavior than the most esteemed antitrust program in the world, criminal enforcement by the Antitrust Division of the U.S. Department of Justice.

The debate over the value of private antitrust enforcement long has been heavy with self-serving assertions by powerful economic interests, but light on factual evidence. To help fill this void we have been conducting research for several years on a variety of empirical topics. This article develops and then explores the implications of …


Do Sex Offender Registration And Notification Laws Affect Criminal Behavior?, J. J. Prescott, Jonah E. Rockoff Jan 2011

Do Sex Offender Registration And Notification Laws Affect Criminal Behavior?, J. J. Prescott, Jonah E. Rockoff

Articles

Sex offenders have become the targets of some of the most far-reaching and novel crime legislation in the U.S. Two key innovations in recent decades have been registration and notification laws which, respectively, require that convicted sex offenders provide valid contact information to law enforcement authorities, and that information about sex offenders be made public. Using the evolution of state law during the 1990s and 2000s, we study how registration and notification affect the frequency of reported sex offenses and the incidence of such offenses across victims. We find evidence that registration reduces the frequency of sex offenses by providing …


"A Good Man Always Knows His Limitations": Overconfidence In Criminal Offending, Thomas Loughran, Ray Paternoster, Alex R. Piquero, Jeffrey Fagan Jan 2011

"A Good Man Always Knows His Limitations": Overconfidence In Criminal Offending, Thomas Loughran, Ray Paternoster, Alex R. Piquero, Jeffrey Fagan

Faculty Scholarship

Traditional criminological research in the area of rational choice and crime decisions places a strong emphasis on offenders’ perceptions of risk associated with various crimes. Yet, this literature has thus far generally neglected the role of individual overconfidence in both the formation of subjective risk perceptions and the association between risk and crime. In other types of high risk behaviors which serve as analogs to crime, including stock trading and uncertain business and investment decisions, overconfidence is shown to have a stimulating effect on an individuals’ willingness to engage in these behaviors. Using data from two separate samples, this paper …


The Disutility Of Injustice, Paul H. Robinson, Geoffrey P. Goodwin, Michael Reisig Dec 2010

The Disutility Of Injustice, Paul H. Robinson, Geoffrey P. Goodwin, Michael Reisig

Faculty Scholarship at Penn Carey Law

For more than half a century, the retributivists and the crime-control instrumentalists have seen themselves as being in an irresolvable conflict. Social science increasingly suggests, however, that this need not be so. Doing justice may be the most effective means of controlling crime. Perhaps partially in recognition of these developments, the American Law Institute's recent amendment to the Model Penal Code's "purposes" provision – the only amendment to the Model Code in the 47 years since its promulgation – adopts desert as the primary distributive principle for criminal liability and punishment. That shift to desert has prompted concerns by two …


A Distributive Theory Of Criminal Law, Aya Gruber Jan 2010

A Distributive Theory Of Criminal Law, Aya Gruber

Publications

In criminal law circles, the accepted wisdom is that there are two and only two true justifications of punishment-retributivism and utilitarianism. The multitude of moral claims about punishment may thus be reduced to two propositions: (1) punishment should be imposed because defendants deserve it, and (2) punishment should be imposed because it makes society safer. At the same time, most penal scholars notice the trend in criminal law to de-emphasize intent, centralize harm, and focus on victims, but they largely write off this trend as an irrational return to antiquated notions of vengeance. This Article asserts that there is in …


The Ongoing Revolution In Punishment Theory: Doing Justice As Controlling Crime, Paul H. Robinson Jan 2010

The Ongoing Revolution In Punishment Theory: Doing Justice As Controlling Crime, Paul H. Robinson

Faculty Scholarship at Penn Carey Law

This lecture offers a broad review of current punishment theory debates and the alternative distributive principles for criminal liability and punishment that they suggest. This broader perspective attempts to explain in part the Model Penal Code's recent shift to reliance upon desert and accompanying limitation on the principles of deterrence, incapacitation, and rehabilitation.


Judging Cruelty, Meghan J. Ryan Jan 2010

Judging Cruelty, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

he wisdom of the death penalty has recently come under attack in a number of states. This raises the question of whether states’ retreat from the death penalty, or other punishments, will pressure other states - either politically or constitutionally - to similarly abandon the punishment. Politically, states may succumb to the trend of discontinuing a punishment. Constitutionally, states may be forced to surrender the punishment if it is considered cruel, and, as a result of a large number of states renouncing it, the punishment also becomes unusual. If a punishment is thus found to be both cruel and unusual, …


Towards A Unique Theory Of International Criminal Sentencing, Jens David Ohlin Jan 2009

Towards A Unique Theory Of International Criminal Sentencing, Jens David Ohlin

Cornell Law Faculty Publications

International criminal law currently lacks a robust procedure for sentencing convicted defendants. Legal scholars have already critiqued the sentencing procedures at the ad hoc tribunals, and the Rome Statute does little more than refer to the gravity of the offense and the individual circumstances of the criminal. No procedures are in place to guide judges in exercising their discretion in a matter that is arguably the most central aspect of international criminal law - punishment. This paper argues that the deficiency of sentencing procedures stems from a more fundamental theoretical deficiency - the lack of a unique theory of punishment …


Restoration But Also More Justice, Stephanos Bibas Jan 2009

Restoration But Also More Justice, Stephanos Bibas

Faculty Scholarship at Penn Carey Law

This short essay replies to Erik Luna's endorsement of restorative justice. He is right that the goal of healing victims, defendants, and their families is important but all too often neglected by substantive criminal law and procedure, which is far too state-centered and impersonal. The problem with restorative justice is that too often it seeks to sweep away punishment as barbaric and downplays the need for deterrence and incapacitation as well. In short, restorative justice deserves more of a role in American criminal justice. Shorn of its political baggage and reflexive hostility to punishment, restorative justice has much to teach …