Law Commons^™

Prevention As The Primary Goal Of Sentencing: The Modern Case For Indeterminate Dispositions In Criminal Cases, Christopher Slobogin

San Diego Law Review

This Article contends that properly constituted, indeterminate sentencing is both a morally defensible method of preventing crime and the optimal regime for doing so, at least for crimes against person and most other street crimes.

More specifically, the position defended in this Article is that, once a person is convicted of an offense, the duration and nature of sentence should be based on a back-end decision made by experts in recidivism reduction, within broad ranges set by the legislature. Compared to determinate sentencing, the sentencing regime advanced in this Article relies on wider sentence ranges and explicit assessments of risk, …

Unfit For Prime Time: Why Cable Television Regulations Cannot Perform Trinko's 'Antitrust Function', Keith Klovers

Michigan Law Review

Until recently, regulation and antitrust law operated in tandem to safeguard competition in regulated industries. In three recent decisions-Trinko, Credit Suisse, and Linkline-the Supreme Court limited the operation of the antitrust laws when regulation "performs the antitrust function." This Note argues that cable programming regulations-which are in some respects factually similar to the telecommunications regulations at issue in Trinko and Linkline-do not perform the antitrust function because they cannot deter anticompetitive conduct. As a result, Trinko and its siblings should not foreclose antitrust claims for damages that arise out of certain cable programming disputes.

Overlitigating Corporate Fraud: An Empirical Examination, Jessica M. Erickson

Law Faculty Publications

Corporate law leaves no stone unturned when it comes to litigating corporate fraud. The legal system has developed a remarkable array of litigation options shareholder derivative suits, securities class actions, SEC enforcement actions, even criminal prosecutions all aimed at preventing the next corporate scandal. Scholars have long assumed that these different lawsuits offer different avenues for deterring the masterminds of corporate fraud yet this assumption has gone untested in the legal literature. This Article aims to fill that gap through the first empirical examination of the broader world of corporate fraud litigation. Analyzing over 700 lawsuits, the study reveals that …

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

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

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

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

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

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 purported to …

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 …

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

All Faculty Scholarship

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 …

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 …

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 …

"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.

Intraportfolio Litigation Essay, Amanda M. Rose, Richard Squire

Faculty Scholarship

The modern trend is for investors to diversify. Shareholders who own one S&P 500 firm tend to own many of the others as well. This trend casts doubt on the traditional compensation and deterrence rationales for legal rules that hold corporations liable for the acts of their agents. Today, when A Corp sues B Corp (for breach of contract, theft of trade secrets, or any other legal wrong), many of the same shareholders own both the plaintiff and the defendant. For these shareholders, damages just shift money from one pocket to another, minus of course lawyer fees. We offer here …

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

Publications

This Article argues that it is time to overrule Mapp v. Ohio. It contends that the exclusionary rule is outdated because a tough deterrent sanction is difficult to reconcile with a criminal justice system where victims are increasingly seen to have a stake in criminal cases. The rule is also increasingly outdated in its epistemological assumption which insists officers act on "reasons" that they can articulate and which disparages actions based on "hunches" or "feelings." This assumption runs counter to a large body of neuroscience research suggesting that humans often "feel" or "sense" danger, sometimes even at a subconscious …

"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 …

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 …

Deterring Serious And Chronic Offenders, Thomas A. Loughran, Alex R. Piquero, Jeffrey A. Fagan, Edward P. Mulvey

Faculty Scholarship

This chapter examines ways of deterring serious and chronic offenders based on evidence from the Pathways to Desistance Study, which addresses the issue of perceptions of deterrence and looks into the mechanisms of deterrence for serious offenders. After a brief overview of the Pathways study, the chapter reviews empirical evidence that demonstrates the rationality of high-risk adolescents regarding involvement in crime. It argues that offenders take into account rational-choice perceptions in their offending decisions and goes on to discuss the elasticity and malleability of these perceptions, and whether adolescent offenders act differently when they change risk and cost perceptions. It …

Minority Practice, Majority's Burden: The Death Penalty Today, James S. Liebman, Peter Clarke

Faculty Scholarship

Although supported in principle by two-thirds of the public and even more of the States, capital punishment in the United States is a minority practice when the actual death-sentencing practices of the nation's 3000-plus counties and their populations are considered This feature of American capital punishment has been present for decades, has become more pronounced recently, and is especially clear when death sentences, which are merely infrequent, are distinguished from executions, which are exceedingly rare.

The first question this Article asks is what forces account for the death-proneness of a minority of American communities? The answer to that question – …

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 Justice is available at http://ssrn.com/abstract=1565693 (published as Robert L. Lande …

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 should be left to …