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Full-Text Articles in Law

Understanding The Revenue Potential Of Tax Compliance Investment, Natasha Sarin, Lawrence H. Summers Jul 2020

Understanding The Revenue Potential Of Tax Compliance Investment, Natasha Sarin, Lawrence H. Summers

Faculty Scholarship at Penn Law

In a July 2020 report, the Congressional Budget Office estimated that modest investments in the IRS would generate somewhere between $60 and $100 billion in additional revenue over a decade. This is qualitatively correct. But quantitatively, the revenue potential is much more significant than the CBO report suggests. We highlight five reasons for the CBO’s underestimation: 1) the scale of the investment in the IRS contemplated is modest and far short of sufficient even to return the IRS budget to 2011 levels; 2) the CBO contemplates a limited range of interventions, excluding entirely progress on information reporting and technological ...


The Cost Of Doing Business: Corporate Crime And Punishment Post-Crisis, Dorothy S. Lund, Natasha Sarin Feb 2020

The Cost Of Doing Business: Corporate Crime And Punishment Post-Crisis, Dorothy S. Lund, Natasha Sarin

Faculty Scholarship at Penn Law

For many years, law and economics scholars, as well as politicians and regulators, have debated whether corporate criminal enforcement overdeters beneficial corporate activity or in the alternative, lets corporate criminals off too easily. This debate has recently expanded in its polarization: On the one hand, academics, judges, and politicians have excoriated the DOJ for failing to send guilty bankers to jail in the wake of the financial crisis; on the other, the DOJ has since relaxed policies aimed to secure individual lability and reduced the size of fines and number of prosecutions.

A crucial and yet understudied piece of evidence ...


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 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 a wide ...


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

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

Faculty Scholarship at Penn 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 ...


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

Strict Liability's Criminogenic Effect, Paul H. Robinson

Faculty Scholarship at Penn 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 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 ...


Reducing False Guilty Pleas And Wrongful Convistions Through Exoneree Compensation, Murat C. Mungan, Jonathan Klick Jan 2016

Reducing False Guilty Pleas And Wrongful Convistions Through Exoneree Compensation, Murat C. Mungan, Jonathan Klick

Faculty Scholarship at Penn Law

A great concern with plea-bargains is that they may induce innocent individuals to plead guilty to crimes they have not committed. In this article, we identify schemes that reduce the number of innocent-pleas without affecting guilty individuals' plea-bargain incentives. Large compensations for exonerees reduce expected costs associated with wrongful determinations of guilt in trial and thereby reduce the number of innocent-pleas. Any distortions in guilty individuals' incentives to take plea bargains caused by these compensations can be off-set by a small increase in the discounts offered for pleading guilty. Although there are many statutory reform proposals for increasing exoneration compensations ...


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

Self-Defense: Tell Me Moore, Kimberly Kessler Ferzan

Faculty Scholarship at Penn 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 ...


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

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

Faculty Scholarship at Penn 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 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 ...


Discounting And Criminals' Implied Risk Preferences, Murat C. Mungan, Jonathan Klick Jan 2015

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

Faculty Scholarship at Penn Law

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.


"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 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 ...


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 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 ...


Quantification Of Harm In Private Antitrust Actions In The United States, Herbert J. Hovenkamp Feb 2011

Quantification Of Harm In Private Antitrust Actions In The United States, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

This paper discusses the theory and experience of United States courts concerning the quantification of harm in antitrust cases. This treatment pertains to both the social cost of antitrust violations, and to the private damage mechanisms that United States antitrust law has developed. It is submitted for the Roundtable on the Quantification of Harm to Competition by National Courts and Competition Agencies, Organization for Economic Cooperation and Development (OECD), Feb., 2011.

In a typical year more than 90% of antitrust complaints filed in the United States are by private plaintiffs rather than the federal government. Further, when the individual states ...


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 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 ...


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 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.


Restoration But Also More Justice, Stephanos Bibas Jan 2009

Restoration But Also More Justice, Stephanos Bibas

Faculty Scholarship at Penn 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 ...


Confronting The Circularity Problem In Private Securities Litigation, Jill E. Fisch Jan 2009

Confronting The Circularity Problem In Private Securities Litigation, Jill E. Fisch

Faculty Scholarship at Penn Law

Many critics argue that private securities litigation fails effectively either to deter corporate misconduct or to compensate defrauded investors. In particular, commentators reason that damages reflect socially inefficient transfer payments—the so-called circularity problem. Fox and Mitchell address the circularity problem by identifying new reasons why private litigation is an effective deterrent, focusing on the role of disclosure in improving corporate governance. The corporate governance rationale for securities regulation is more powerful than the authors recognize. By collecting and using corporate information in their trading decisions, informed investors play a critical role in enhancing market efficiency. This efficiency, in turn ...


Engaging Capital Emotions, Douglas A. Berman, Stephanos Bibas Jan 2008

Engaging Capital Emotions, Douglas A. Berman, Stephanos Bibas

Faculty Scholarship at Penn Law

The Supreme Court, in Kennedy v. Louisiana, is about to decide whether the Eighth Amendment forbids capital punishment for child rape. Commentators are aghast, viewing this as a vengeful recrudescence of emotion clouding sober, rational criminal justice policy. To their minds, emotion is distracting. To ours, however, emotion is central to understand the death penalty. Descriptively, emotions help to explain many features of our death-penalty jurisprudence. Normatively, emotions are central to why we punish, and denying or squelching them risks prompting vigilantism and other unhealthy outlets for this normal human reaction. The emotional case for the death penalty for child ...


How Psychology Is Changing The Punishment Theory Debate, Paul H. Robinson Jan 2007

How Psychology Is Changing The Punishment Theory Debate, Paul H. Robinson

Faculty Scholarship at Penn Law

This brief essay reviews the contributions that social psychology is making the debate among criminal law theorists on the proper principle for the distribution of criminal liability and punishment. Included are a discussion of suggestions that deterrence may be ineffective as a distributive principle, that incapacitation of dangerous persons may be effective but might be more effective if pursued through a detention system distinct from the criminal justice system, and that desert as a distributive principle, ironically, might be the most effective for controlling crime. Available for download at http://ssrn.com/abstract=956130


The Role Of Deterrence In The Formulation Of Criminal Law Rules: At Its Worst When Doing Its Best, Paul H. Robinson Jan 2003

The Role Of Deterrence In The Formulation Of Criminal Law Rules: At Its Worst When Doing Its Best, Paul H. Robinson

Faculty Scholarship at Penn Law

For the past several decades, the deterrence of crime has been a centerpiece of criminal law reform. Law-givers have sought to optimize the control of crime by devising a penalty-setting system that assigns criminal punishments of a magnitude sufficient to deter a thinking individual from committing a crime. Although this seems initially an intuitively compelling strategy, we are going to suggest that is a poor one; poor for two reasons. First, its effectiveness rests on a set of assumptions that on examination cannot be sustained. Second, the attempt to employ the strategy generates a good many crimogenic costs that are ...