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Deterrence

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Full-Text Articles in Law

Rights Disappear When Us Policy Engages Children As Weapons Of Deterrence, Craig B. Mousin Dec 2018

Rights Disappear When Us Policy Engages Children As Weapons Of Deterrence, Craig B. Mousin

Craig B. Mousin

Although the United States provided significant guidance in drafting the Convention on the Rights of the Child (CRC) it has never ratified the convention. The failure to ratify has taken on critical significance in light of new federal policies that have detained over 15,000 children in 2018, separated families, accelerated removal of asylum seekers, and emphasized deterring families from seeking asylum.

This article raises ethical and health implications of these refugee policies in light of the United States’ failure to ratify the CRC. It first examines the development of the CRC and international refugee law. It next lists some ...


Indian Tribes, Civil Rights, And Federal Courts, Robert D. Probasco Aug 2018

Indian Tribes, Civil Rights, And Federal Courts, Robert D. Probasco

Robert Probasco

A citizen’s civil rights include protections against certain actions by three different governments – federal, state, and tribal. If the federal or a state government violates your civil rights, you can seek a remedy in federal court, including injunctive or declaratory judgment and damages. But the Supreme Court decided in Santa Clara Pueblo v. Martinez that that – other than habeas corpus relief – you cannot challenge a civil rights violation by an Indian tribe in federal court. The decision has resulted in a significant amount of controversy and proposals that Congress explicitly grant such jurisdiction. This article reviews the Supreme Court ...


Neuroimaging And The "Complexity" Of Capital Punishment, O. Carter Snead Aug 2016

Neuroimaging And The "Complexity" Of Capital Punishment, O. Carter Snead

O. Carter Snead

The growing use of brain imaging technology to explore the causes of morally, socially, and legally relevant behavior is the subject of much discussion and controversy in both scholarly and popular circles. From the efforts of cognitive neuroscientists in the courtroom and the public square, the contours of a project to transform capital sentencing both in principle and in practice have emerged. In the short term, these scientists seek to play a role in the process of capital sentencing by serving as mitigation experts for defendants, invoking neuroimaging research on the roots of criminal violence to support their arguments. Over ...


Bringing Fear To The Perpetrators – Humanitarian Cyber Operations As Evidence Gathering And Deterrence, Jan Kallberg Jun 2015

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 ...


Party Autonomy In Tort Theory And Reform, Christopher Robinette Dec 2014

Party Autonomy In Tort Theory And Reform, Christopher Robinette

Christopher J Robinette

Tort theory has been dominated by a debate between scholars who view tort law as rooted in individualized justice and scholars who argue tort law is an instrument of social policy. This dialogue has distracted scholars from the more important issue of how to properly separate cases worthy of individualized justice treatment from those better suited to routinized resolution. Tort law already contains both types. One potentially fruitful method of separation is to empower the parties themselves to make the decision. They could do so by voluntarily trading liability for the elimination or substantial reduction in non-economic damages. Such an ...


Crime And Punishment, A Global Concern: Who Does It Best And Does Isolation Really Work?, Melanie M. Reid Dec 2014

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

Melanie M. Reid

On July 8, 2013, 30,000 prisoners in California joined a hunger strike organized by gang members kept in Pelican Bay’s Security Housing Unit and argued that solitary confinement constituted cruel and unusual punishment. As a result of his confinement, one inmate involved in the hunger strike stated that he felt as if all his ties to humanity had been severed. Every country, in some form or another, imprisons and isolates individuals for two common reasons: to punish or to protect society from the person’s anticipated future conduct. This article examines the relationship between crime and punishment and ...


Towards A Unique Theory Of International Criminal Sentencing, Jens David Ohlin Dec 2014

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

Jens David Ohlin

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 for international ...


The Deterrent Effect Of The Death Penalty For Murder In Ohio: A Time-Series Analysis, William C. Bailey Feb 2014

The Deterrent Effect Of The Death Penalty For Murder In Ohio: A Time-Series Analysis, William C. Bailey

William C. Bailey

One thing is abundantly clear from the analysis reported in this article: if Ohio is to reinstate capital punishment, its justification will have to be based upon grounds other than the deterrent effect of the death penalty for murder. Notwithstanding the opinion of some members of the United States Supreme Court, and possibly a majority of the Ohio House and Senate, the present analysis of Ohio's experience with capital punishment provides no justification for reinstating the death penalty as an effective means of dealing with the state's murder problem.


Beyond Finality: How Making Criminal Judgments Less Final Can Further The Interests Of Finality, Andrew Chongseh Kim Oct 2013

Beyond Finality: How Making Criminal Judgments Less Final Can Further The Interests Of Finality, Andrew Chongseh Kim

Andrew Chongseh Kim

Courts and scholars commonly assume that granting convicted defendants more liberal rights to challenge their judgments would harm society’s interests in “finality.” According to conventional wisdom, finality in criminal judgments is necessary to conserve resources, encourage efficient behavior by defense counsel, and deter crime. Thus, under the common analysis, the extent to which convicted defendants should be allowed to challenge their judgments depends on how much society is willing to sacrifice to validate defendants’ rights. This Article argues that expanding defendants’ rights on post-conviction review does not always harm these interests. Rather, more liberal review can often conserve state ...


Death From Above: The Weaponization Of Outer Space And The Threat To International Humanitarian Law, Robert D. Onley Mr. Sep 2013

Death From Above: The Weaponization Of Outer Space And The Threat To International Humanitarian Law, Robert D. Onley Mr.

Robert D. Onley

While the widespread use of drones in combat today has justifiably led to extensive legal analyses in the early part of the twenty-first century, the broader ongoing weaponization of outer space - as seen through the proliferation of anti-satellite weapons technology and space-based bombers - has not garnered the same legal scrutiny. But as modern civilizations have become entirely dependent on satellite technology for the peaceful functioning of the global digital economy, the new found military capability to rapidly destroy a nation’s satellite communication system represents a lethal and legal unknown that must be critically assessed. Through an examination of existing ...


Punishment And Rights, Benjamin L. Apt Feb 2013

Punishment And Rights, Benjamin L. Apt

Benjamin L. Apt

Prevalent theories of criminal punishment lack a rationale for the precise duration and nature of state-ordered criminal punishment. In practice, too, criminal penalization suffers from inadequate evidence of punitive efficacy. These deficiencies, in theory and in fact, would not be so grave were the state to enjoy unfettered power over the disposition of criminal penalties. However, in societies that recognize legal rights, criminal punishments must be consistent with rights. Efficacy, even where demonstrable, does not suffice as a legal justification for punishment. This article analyzes the source of rights and how they function as primary rules in a legal system ...


White Collar Over-Criminalization: Deterrence, Plea Bargaining, And The Loss Of Innocence, Lucian Dervan Dec 2012

White Collar Over-Criminalization: Deterrence, Plea Bargaining, And The Loss Of Innocence, Lucian Dervan

Lucian E Dervan

Overcriminalization takes many forms and impacts the American criminal justice system in varying ways. This article focuses on a select portion of this phenomenon by examining two types of overcriminalization prevalent in white collar criminal law. The first type of over criminalization discussed in this article is Congress’s propensity for increasing the maximum criminal penalties for white collar offenses in an effort to punish financial criminals more harshly while simultaneously deterring others. The second type of overcriminalization addressed is Congress’s tendency to create vague and overlapping criminal provisions in areas already criminalized in an effort to expand the ...


Justice Holmes’S Bad Man And The Depleted Purposes Of Punitive Damages, Jill W. Lens Dec 2012

Justice Holmes’S Bad Man And The Depleted Purposes Of Punitive Damages, Jill W. Lens

Jill Wieber Lens

Justice Holmes introduced his bad man as a tool to separate law and morality. The bad man is not affected by morality, and sees a tort duty only as an obligation to pay damages. The bad man does not consider any chance of escaping liability, so he sees that obligation as mandatory. Applied hypothetically to punitive damages, the bad man would not appreciate the morality basis for imposing punitive damages or the moral condemnation and stigma that traditionally results from that imposition. Instead, he sees punitive damages as just another check that he will be required to write. 

In Exxon ...


Forfeitures Revisited: Bringing Principle To Practice In Federal Court, David Pimentel Jan 2012

Forfeitures Revisited: Bringing Principle To Practice In Federal Court, David Pimentel

David Pimentel

Dramatically expanded use of federal forfeitures since the 1980s has raised persistent concerns about government overreaching in the seizure of private property. The Supreme Court failed to address the problem in Bennis v. Michigan (1996), upholding the forfeiture of property of an entirely innocent owner, relying on the ancient and unconvincing principle that the property itself is guilty. Congress stepped in to curb law enforcement’s worst abuses of this lucrative practice in 2000, but the Civil Asset Forfeiture Reform Act was a patchwork effort that tweaked the rules without revisiting the unsatisfying policies behind them. Thus a comprehensive, policy-based ...


How Shareholder Litigations Deter Directors And Officers. U.S. And Italy, A Comparative Analysis, Federico Pastre Sep 2011

How Shareholder Litigations Deter Directors And Officers. U.S. And Italy, A Comparative Analysis, Federico Pastre

Federico Pastre

This paper focuses on the issue of whether shareholder litigations brought in the U.S. - namely, derivative suits and securities class actions – and their equivalent in the Italian law system, achieve their principal regulatory goal of deterring corporate directors and officers from engaging in unlawful conduct, in addition to compensating shareholders and investors for the harm they suffered.

In the U.S., effective derivative suits and securities class actions, contingency fees, and the rule concerning legal expenses, create an entrepreneurial system in which directors and officers are ultimately deterred by the private enforcement of the law. Nevertheless, the presence of ...


Criminal Affirmance: Going Beyond The Deterrence Paradigm To Examine The Social Meaning Of Declining Prosecution Of Elite Crime, Mary Kreiner Ramirez Aug 2011

Criminal Affirmance: Going Beyond The Deterrence Paradigm To Examine The Social Meaning Of Declining Prosecution Of Elite Crime, Mary Kreiner Ramirez

mary k ramirez

Recent financial scandals and the relative paucity of criminal prosecutions in response suggest a new reality in the criminal law system: some wrongful actors appear above the law and immune from criminal prosecution. As such, the criminal prosecutorial system affirms much of the wrongdoing giving rise to the crisis. This leaves the same elites undisturbed at the apex of the financial sector, and creates perverse incentives for any successors. Their position of power results in massive deadweight losses for the entire economy as a result of their crimes. Further, this undermines the legitimacy of the rule of law and encourages ...


Punitive Damages--Developments In Section 1983 Cases, Eileen Kaufman, Martin A. Schwartz Jun 2011

Punitive Damages--Developments In Section 1983 Cases, Eileen Kaufman, Martin A. Schwartz

Martin A. Schwartz

No abstract provided.


Criminal Affirmance: Going Beyond The Deterrence Paradigm To Examine The Social Meaning Expressed By Exercising Discretion To Decline Prosecution Of Elite Crime, Mary K. Ramirez Apr 2011

Criminal Affirmance: Going Beyond The Deterrence Paradigm To Examine The Social Meaning Expressed By Exercising Discretion To Decline Prosecution Of Elite Crime, Mary K. Ramirez

mary k ramirez

Criminal Affirmance: Going Beyond the Deterrence Paradigm to Examine the Social Meaning Expressed by Exercising Discretion to Decline Prosecution of Elite Crime Professor Mary Kreiner Ramirez Article Abstract Recent financial scandals and the relative paucity of criminal prosecutions in response suggest a new reality in the criminal law system: some wrongful actors appear above the law and immune from criminal prosecution. As such, the criminal prosecutorial system affirms much of the wrongdoing giving rise to the crisis. This leaves the same elites undisturbed at the apex of the financial sector, and creates perverse incentives for any successors. Further, this undermines ...


Punitive Damages--Developments In Section 1983 Cases, Eileen Kaufman, Martin A. Schwartz Mar 2011

Punitive Damages--Developments In Section 1983 Cases, Eileen Kaufman, Martin A. Schwartz

Eileen Kaufman

No abstract provided.


Testimony In Support Of Connecticut Senate Bill 1035 And House Bill 6425, Abolishing The Death Penalty (2011), John J. Donohue Mar 2011

Testimony In Support Of Connecticut Senate Bill 1035 And House Bill 6425, Abolishing The Death Penalty (2011), John J. Donohue

John Donohue

In 1975, Isaac Ehrlich launched the modern econometric evaluation of the impact of the death penalty on the prevalence of murder with a controversial paper that concluded that each execution would lead to eight fewer homicides (Ehrlich 1975). A year later, the Supreme Court cited Ehrlich’s work in issuing an opinion ending the execution moratorium that had started with the 1972 decision in Furman v. Georgia. Today it is widely recognized that Ehrlich's national time-series methodology is too unreliable to be published in any economics journal.

Over the last few years, a number of highly technical papers have ...


Does Tort Law Deter?, W. Jonathan Cardi, Randy Penfield, Albert H. Yoon Mar 2011

Does Tort Law Deter?, W. Jonathan Cardi, Randy Penfield, Albert H. Yoon

W. Jonathan Cardi

For nearly four decades, economic analysis has dominated academic discussion of tort law. Courts also have paid increasing attention to the potential deterrent effects of their tort decisions. But at the center of each economic model and projection of cost and benefit lies a widely-accepted but grossly under-tested assumption that tort liability in fact deters tortious conduct. This article reports the results of a behavioral science study that tests this assumption as it applies to individual conduct. Surveying over 700 first-year law students, the study presented a series of vignettes, asking subjects to rate the likelihood that they would engage ...


Deferred Prosecution Agreements: Prosecutorial Balance In Times Of Economic Meltdown, Sharon Oded Jan 2011

Deferred Prosecution Agreements: Prosecutorial Balance In Times Of Economic Meltdown, Sharon Oded

Sharon Oded

At times when the American economy faces enormous challenges, traditional prosecutorial measures that involve high public spending and immense collateral risks may hamper economic recovery. Economic meltdowns, such as the one we have been experiencing in recent years, call for a refreshment of the prosecutorial toolkit aimed at controlling corporate misconduct. This paper discusses the newly emerged enforcement mechanism, Deferred Prosecution Agreements (DPAs), in light of the current national goal of economic recovery. It portrays the evolution of DPAs and the stimulus for its expansion that followed recent Corporate America scandals. Based on the evaluation of the major promises and ...


"Terror Among The Gum Trees" - Is Our Criminal Legal Framework Adequate To Curb The Peril Of Bushfire Arson In Australia, John L. Anderson Jan 2011

"Terror Among The Gum Trees" - Is Our Criminal Legal Framework Adequate To Curb The Peril Of Bushfire Arson In Australia, John L. Anderson

John L Anderson

No abstract provided.


Summaries Of Twenty Cases Of Successful Private Antitrust Enforcement, Joshua Davis, Robert Lande Dec 2010

Summaries Of Twenty Cases Of Successful Private Antitrust Enforcement, Joshua Davis, Robert Lande

Joshua P. Davis

This document summarizes twenty cases of successful private antitrust enforcement. These twenty summaries build on earlier summaries of forty additional cases of successful private enforcement available at http://ssrn.com/abstract=1105523. An analysis of the data from the original forty cases is available at http://ssrn.com/abstract=1090661 (published as Robert L. Lande and Joshua P. Davis, Benefits From Private Antitrust Enforcement: An Analysis of Forty Cases, 42 U.S.F. L. REV. 879 (2008)) and an argument based on the forty cases that private antitrust enforcement has greater deterrence effects than criminal enforcement by the Department of ...


Liability For Future Harm, Alex Stein, Porat Ariel Dec 2010

Liability For Future Harm, Alex Stein, Porat Ariel

Alex Stein

This Article considers the possibility of imposing liability in torts for a wrongfully created risk of future harm. We examine the American and English court decisions pertaining to this issue and consider whether a probability-based compensation for the victim’s expected—albeit not yet materialized—harm is just and efficient. We demonstrate how the virtues of a legal regime that allows a tort victim to recover compensation for her expected harm overshadow its vices. We conclude that a person’s risk of sustaining harm in the future should be actionable whenever the risk is substantial. We further conclude that it ...


Capping Incentives, Capping Innovation, Courting Disaster: The Gulf Oil Spill And Arbitrary Limits On Civil Liability, Andrew Popper Dec 2010

Capping Incentives, Capping Innovation, Courting Disaster: The Gulf Oil Spill And Arbitrary Limits On Civil Liability, Andrew Popper

Andrew Popper

Abstract: Limiting liability by establishing an arbitrary cap on civil damages is bad public policy. Caps are antithetical to the interests of consumers and at odds with the national interest in creating incentives for better and safer products. Whether the caps are on non-economic loss, punitive damages, or set for specific activity, they undermine the civil justice system, deceiving juries and denying just and reasonable compensation for victims in a broad range of fields. This paper postulates that capped liability on damages for offshore oil spills may well have been an instrumental factor contributing to the recent Deepwater Horizon catastrophe ...


The Peculiar Challenges Posed By Latent Diseases Resulting From Mass Products, Donald G. Gifford Jul 2010

The Peculiar Challenges Posed By Latent Diseases Resulting From Mass Products, Donald G. Gifford

Donald G Gifford

Legal actions against manufacturers of products that cause latent diseases, such as asbestos products, cigarettes, lead-pigment, and Agent Orange, are the signature torts of our time. Yet within this rather important subset of tort liability, it is unlikely that the imposition of liability actually results in loss prevention. Three factors, present in varying combinations in the context of latent diseases resulting from product exposure, frustrate the deterrent impact of liability. First, an extended period of time—sometimes decades—passes between the time of the manufacturer’s distribution of the product and the imposition of liability. Second, the accident compensation system ...


12 Unnecessary Men: The Case For Eliminating Jury Trials In Drunk Driving Cases, Adam Gershowitz Feb 2010

12 Unnecessary Men: The Case For Eliminating Jury Trials In Drunk Driving Cases, Adam Gershowitz

Adam M. Gershowitz

Over the last few decades, states have imposed tougher punishments on drunk drivers. This article argues that increasing punishments is counterproductive. If legislatures are seeking to hold guilty offenders accountable and deter drunk driving, they should keep punishments low and instead abolish the right to jury trials. Under the petty offense doctrine, the Supreme Court has authorized states to abolish jury trials when defendants face a maximum sentence of six months' incarceration. Social science evidence has long demonstrated that judges are more likely to convict than juries, particularly in drunk driving cases. And researchers have also found that the certainty ...


The Need To Overrule Mapp V. Ohio, William T. Pizzi Feb 2010

The Need To Overrule Mapp V. Ohio, William T. Pizzi

William T. Pizzi

This Article argues that it is time to overrule Mapp v. Ohio. It contends, first of all, that a tough deterrent sanction is difficult to reconcile with a system where victims are increasingly seen to have a stake in criminal cases. Secondly, the Article maintains that a tough exclusionary sanction is also inappropriate given what police are asked to do on the street and the fact that concepts such as probable cause or reasonable suspicion are inevitably matters of judgment on which opinions will differ. Thirdly, the Article challenges one of the Court’s main epistemological assumptions, namely, the insistence ...


The Instrumental Justice Of Private Law, Alan Calnan Jan 2010

The Instrumental Justice Of Private Law, Alan Calnan

Alan Calnan

Instrumentalists and deontologists have long battled for an exclusive theory of private law. The instrumentalists have argued that private law is merely a means to achieving any number of political or social ends. Deontologists, by contrast, have contended that the law seeks only the moral end of justice and cannot be used for anything else. In this article, I critique these extreme positions and offer an intermediate theory called “instrumental justice.” I show that the absolute instrumental view is elusive, illusory, and illiberal, while the absolute deontological view is incoherent, implausible, and in one critical respect, impossible. Instrumental justice avoids ...