Law Commons^™

Inducing Corporate Compliance: A Law And Economics Analysis Of Corporate Liability Regimes By Sharon Oded: Discussion, Carlo Drago

Carlo Drago

No abstract provided.

Penalizing Punitive Damages: Why The Supreme Court Needs A Lesson In Law & Economics, Steve P. Calandrillo

Steve P. Calandrillo

Last fall’s landmark Supreme Court decision addressing punitive damages in the infamous Exxon Valdez oil spill case has brought the issue of punitive awards back into the legal limelight. Modern Supreme Court jurisprudence, most notably BMW, State Farm, Philip Morris, and now Exxon Valdez in 2008, have concluded that such judgments are justified to punish morally reprehensible behavior and to “send a message” to evildoers. However, the Court has increasingly emphasized that the U.S. Constitution’s Due Process Clause presumptively limits punitive awards, drawing an arbitrary line in the sand of no more than ten times actual damages.

This paper critically …

Exporting Class Actions To The European Union, Tiana Leia Russell

Tiana Leia Russell

In this paper, I present the theoretical debates regarding the value of class action litigation, both with respect to compensation and deterrence. I begin by reviewing the class action litigation model in the United States. The paper then explores the current state of private antitrust enforcement in the European Union, with specific focus on the availability of class action litigation within Europe. I discuss recent calls within the European Union for greater private enforcement of competition law and outline steps the Commission has taken in addressing that need, including the recently published White Paper on Damages for Breach of EC …

The Non-Proliferation Treaty As A Non-Factor: The True Foundations Of The Nonproliferation Regime, Kenneth J. Duvall

Kenneth J Duvall

The Treaty on the Non-Proliferation of Nuclear Weapons (NPT) is apparently one of the more crucial legal tools in the world. Yet even the most ardent supporters of the NPT now acknowledge its deficiencies. The NPT’s failings have led to a situation where neither states with nuclear weapons nor those without such armament are pleased with the current state of affairs. Nonetheless, virtually all scholars and policy-makers continue to maintain that the NPT can and must be fixed in order to sustain the nonproliferation regime. This Note contends that the inadequacy of the NPT exists at such a fundamental level …

Happiness And Punishment (With J. Bronsteen & J. Masur), Christopher J. Buccafusco

Christopher J. Buccafusco

This article continues our project to apply groundbreaking new literature on the behavioral psychology of human happiness to some of the most deeply analyzed questions in law. Here we explain that the new psychological understandings of happiness interact in startling ways with the leading theories of criminal punishment. Punishment theorists, both retributivist and utilitarian, have failed to account for human beings' ability to adapt to changed circumstances, including fines and (surprisingly) imprisonment. At the same time, these theorists have largely ignored the severe hedonic losses brought about by the post-prison social and economic deprivations (unemployment, divorce, and disease) caused by …

In With The New, Out With The Old: Expanding The Scope Of Retroactive Amelioration, S. David Mitchell

S. David Mitchell

The legislative decision to amend a statute and reduce a sentence but not to apply it retroactively to pending prosecutions or to finalized convictions is in accord with the principles of retroactivity, but contrary to legitimate goals of punishment, i.e. deterrence and retributivism. Genarlow Wilson, convicted at seventeen of aggravated child molestation, a felony, for consensual oral sex with a fifteen-year old classmate, was sentenced to a mandatory minimum of ten years. While his appeal was pending, the Georgia Legislature reclassified the conduct as a misdemeanor and reduced the sentence to a maximum of one year but decided not to …

Reforming Securities Litigation Reform: A Proposal For Restructuring The Relationship Between Public And Private Enforcement Of Rule 10b-5, Amanda M. Rose

Amanda M Rose

Forthcoming in Columbia Law Review, Vol. 108, No. 6 (Oct. 2008)

For years, commentators have debated how to reform the controversial Rule 10b-5 class action, without pausing to ask whether the game is worth the candle. Is private enforcement of Rule 10b-5 worth preserving, or might we be better off with exclusive public enforcement? This fundamental and neglected question demands attention today more than ever. An academic consensus has now emerged that private enforcement of Rule 10b-5 cannot be defended on compensatory grounds, at least in its most common form (a fraud-on-the-market class action brought against a non-trading issuer). That …

Juvenile Transfer Laws: An Effective Deterrent To Delinquency?, Richard Redding

Richard E. Redding

Provides an overview of research on the deterrent effects of transferring youth from juvenile to criminal courts, focusing on large-scale comprehensive OJJDP-funded studies on the effect of transfer laws on recidivism. The Bulletin reviews all of the extant research on the general and specific deterrent effects of transferring juveniles to adult criminal court.

Cafa's Impact On Litigation As A Public Good, Elizabeth Chamblee Burch

Elizabeth Chamblee Burch

Class actions regulate when government fails. Perhaps this use as an ex post remedy when ex ante regulation founders explains the fervor and rhetoric surrounding Rule 23’s political life. In truth, the class action does more than aggregate; it augments government policing and generates external societal benefits. These societal benefits – “externalities” – are the spillover effects from facilitating small claims litigation. In federalizing class actions through the Class Action Fairness Act (CAFA), Congress, in some ways, impeded class action practice, thereby negating its positive externalities and inhibiting backdoor regulation. This Article critically considers those effects on the common good. …

The Cy Pres Problem And The Role Of Damages In Tort Law, Goutam U. Jois

Goutam U Jois

Class action litigation presents a common problem that has received little discussion in the academic literature. In almost every case, the plaintiff class’s recovery is not fully distributed. For example, all possible plaintiffs may not come forward with their claims, the plaintiffs may not be ascertainable, or claims may not be timely submitted. Administrators are regularly posed with the problem of what to do with these residual funds. Currently, courts are free to do virtually anything with such funds. The system is ad hoc, unpredictable, and unguided by any normative principle. In these cases, I propose that the funds should …

Entrapment And Terrorism, Dru Stevenson

Dru Stevenson

The thesis of this article is that the unique nature of terrorist crime requires a tweaking of the entrapment rules. The entrapment defense is our legal system’s primary mechanism for regulating government sting operations. I argue that sting operations and surveillance are conceptually distinct (or rival) methods of law enforcement, which compete for resource allocation. If an enforcement agency favors one method, it shifts resources away from the other. To the extent that we dislike panoptic government surveillance, we can steer enforcement agencies away from it by encouraging targeted stings; and we can achieve this, in part, by adapting the …

Adult Punishment For Juvenile Offenders: Does It Reduce Crime?, Richard E. Redding

Richard E. Redding

This chapter discusses the research on the general and specific deterrent effects of transferring juveniles for trial in adult criminal court, identifies gaps in our knowledge base that require further research, discusses the circumstances under which effective deterrence may be achieved, and examines whether there are effective alternatives for achieving deterrence other than adult sanctions for serious juvenile offenders. As a backdrop to this analysis, the chapter first examines the role of public opinion in shaping the get tough policies, and how policy makers have misunderstood and perceived support for these policies.

Wrongful Abortion: A Wrong In Search Of A Remedy, Ronen Perry, Yehuda Adar

Ronen Perry

Wrongful abortion is an abortion that a pregnant woman is induced to undergo by a negligent conduct (usually a medical misrepresentation). For example, early in her pregnancy a woman is told by her physician that a medication that she had taken would cause her baby to be born with a severe birth defect. Based on the expert opinion, she decides to undergo an abortion. Only after the abortion does she learn that the advice regarding the baby's health was a negligent misrepresentation, and that the termination of the pregnancy was unnecessary. Underlying our article is a fundamental intuition that the …

Scared To Death: Capital Punishment As Authoritarian Terror Management, Donald P. Judges

Donald P. Judges

American capital punishment poorly serves its stated goal of deterrence, retribution, and incapacitation. It is outrageously expensive, morally troubling, and widely repudiated. Why and how, then, does it flourish here? Drawing on a social psychological theory known as “terror management,” I argue there that it is best understood as a largely non-conscious, symbolic defense against the incipient terror provoked by awareness of death. According to terror management theory, when reminded of their own mortality, people deploy a mostly non-conscious defensive process that reduces anxiety by enhancing self-esteem through identification with and protection of cultural worldview. This defense manifests in hyperpunitiveness, …