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Articles 511 - 540 of 559

Full-Text Articles in Law and Economics

Prisons Of The Mind: Social Value And Economic Inefficiency In The Criminal Justice Response To Mental Illness, Amanda C. Pustilnik Aug 2005

Prisons Of The Mind: Social Value And Economic Inefficiency In The Criminal Justice Response To Mental Illness, Amanda C. Pustilnik

ExpressO

This Article employs a “New Chicago School” law and economics analysis to examine why the staggering economic and human costs of channeling non-violent mentally ill adults and children into the criminal system not only are countenanced but embraced by voters and lawmakers. Analyzing legislation, statements by lawmakers and jurors, and historical sources, the Article contends that certain social value is created through the incarceration of this marginalized group. That is, there is a taste for the punishment of these people that incarceration satisfies but that therapeutic alternatives would not. The willingness to pay for this contestable taste keeps entrenched this …

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Life V. Death: Or Why The Death Penalty Should Marginally Deter, Charles N. W. Keckler Aug 2005

Life V. Death: Or Why The Death Penalty Should Marginally Deter, Charles N. W. Keckler

George Mason University School of Law Working Papers Series

Econometric measures of the effect of capital punishment have increasingly provided evidence that it deters homicides. However, most researchers on both sides of the death penalty debate continue to rely on rather simple assumptions about criminal behavior. I attempt to provide a more nuanced and predictive rational choice model of the incentives and disincentives to kill, with the aim of assessing to what extent the statistical findings of deterrence are in line with theoretical expectations. In particular, I examine whether it is plausible to suppose there is a marginal increase in deterrence created by increasing the penalty from life imprisonment …

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Deterring Roper’S Juveniles: Why Immature Criminal Youth Require The Death Penalty More Than Adults – A Law & Economics Approach, Moin A. Yahya Aug 2005

Deterring Roper’S Juveniles: Why Immature Criminal Youth Require The Death Penalty More Than Adults – A Law & Economics Approach, Moin A. Yahya

ExpressO

In Roper v. Simmons, the United States Supreme Court declared the death penalty for juveniles unconstitutional. It relied on three reasons, one of which concerns this article, namely the theory that juveniles are less culpable and deterrable than adults. The Court relied on the American Medical Association’s amicus brief which purported to show scientifically that juveniles had less developed brains than adults. The Court characterized juveniles as being risk-lovers who highly preferred the present over the future, who loved gains no matter how risky but did not care for losses, and who could not engage in proper cost-benefit analysis, because …

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Partial Ban On Plea Bargains, Oren Gazal Aug 2005

Partial Ban On Plea Bargains, Oren Gazal

Law & Economics Working Papers Archive: 2003-2009

The influence of the plea bargaining system on innocent defendants is fiercely debated. Many scholars call for a ban on plea bargaining, arguing that the practice coerces innocent defendants to plead guilty. Proponents of plea bargaining respond that even an innocent defendant is better off when he choose to plea bargain in order to assure a lenient result, if he concludes that the risk of wrongful trial conviction is too high. They claim that since plea bargaining is only an option, it cannot harm the defendant whether he is guilty or innocent. This paper argues that the both supporters and …

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An Economic Analysis Of The Private And Social Costs Of The Provision Of Cybersecurity And Other Public Security Goods, Bruce H. Kobayashi Apr 2005

An Economic Analysis Of The Private And Social Costs Of The Provision Of Cybersecurity And Other Public Security Goods, Bruce H. Kobayashi

George Mason University School of Law Working Papers Series

This paper examines the incentives of private actors to invest in cybersecurity. Prior analyses have examined investments in security goods, such as locks or safes that have the characteristics of private goods. The analysis in this paper extends this analysis to examine expenditures on security goods, such as information, that have the characteristics of public goods. In contrast to the private goods case, where individual uncoordinated security expenditures can lead to an overproduction of security, the public goods case can result in the underproduction of security expenditures, and incentives to free ride. Thus, the formation of collective organizations may be …

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The New Deterrence: Crime And Policy In The Age Of Globalization, Patrick Keenan Apr 2005

The New Deterrence: Crime And Policy In The Age Of Globalization, Patrick Keenan

ExpressO

Globalization has made it much easier for criminal activity to cross borders, but deterrence theory has not kept up with this changed reality. I draw insights from both law-and-economics and criminology literature to enrich our understanding of deterrence. I ground my theoretical discussion in the real-world problem of sex tourism as an example of the kind of unwanted activity that now crosses borders and has complicated our understanding of deterrence. I focus on two issues central to deterrence that have not gotten sufficient scholarly attention: the phenomenon of displacement and the role of status. I argue that informal sanctions, as …

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Murder, Meth, Mammon & Moral Values: The Political Landscape Of American Sentencing Reform (In Symposium On White Collar Crime), Frank O. Bowman Iii Apr 2005

Murder, Meth, Mammon & Moral Values: The Political Landscape Of American Sentencing Reform (In Symposium On White Collar Crime), Frank O. Bowman Iii

Faculty Publications

This Article examines the ongoing American experiment in mass incarceration and considers the prospects for meaningful sentencing reform.

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Organizational Misconduct: Beyond The Principal-Agent Model, Kimberly D. Krawiec Feb 2005

Organizational Misconduct: Beyond The Principal-Agent Model, Kimberly D. Krawiec

ExpressO

This article demonstrates that, at least since the adoption of the Organizational Sentencing Guidelines in 1991, the United States legal regime has been moving away from a system of strict vicarious liability toward a system of duty-based organizational liability. Under this system, organizational liability for agent misconduct is dependant on whether or not the organization has exercised due care to avoid the harm in question, rather than under traditional agency principles of respondeat superior. Courts and agencies typically evaluate the level of care exercised by the organization by inquiring whether the organization had in place internal compliance structures ostensibly designed …

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Time-Inconsistent Management & The Sarbanes-Oxley Act, Manuel A. Utset Jan 2005

Time-Inconsistent Management & The Sarbanes-Oxley Act, Manuel A. Utset

Scholarly Publications

No abstract provided.

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Al Capone's Revenge: An Essay On The Political Economy Of Pretextual Prosecution, Daniel C. Richman, William J. Stuntz Jan 2005

Al Capone's Revenge: An Essay On The Political Economy Of Pretextual Prosecution, Daniel C. Richman, William J. Stuntz

Faculty Scholarship

Most analyses of pretextual prosecutions – cases in which prosecutors target defendants based on suspicion of one crime but prosecute them for another, lesser crime – focus on the defendant's interest in fair treatment. Far too little attention is given to the strong social interest in non-pretextual prosecutions. Charging criminals with their "true" crimes makes criminal law enforcement more transparent, and hence more politically accountable. It probably also facilitates deterrence. Meanwhile, prosecutorial strategies of the sort used to "get" Al Capone can create serious credibility problems. The Justice Department has struggled with those problems as it has used Capone-style strategies …

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Capitalism, Social Marginality, And The Rule Of Law's Uncertain Fate In Modern Society, Ahmed A. White Jan 2005

Capitalism, Social Marginality, And The Rule Of Law's Uncertain Fate In Modern Society, Ahmed A. White

Publications

The rule of law is liberalism's key juridical aspiration. Yet its norms, centered on the principles of legality and legal generality, are being compromised all over the political and legal landscape. For decades, the dominant explanation of this worrying condition has focused mainly on the rise of the welfare state and its apparent incompatibility with the rule of law. But this approach, though shared by a politically diverse range of scholars, is outdated and misconceives the problem. A central function of the modem state has always been to prevent capitalism's inherent tendencies toward social marginalization from devolving into general social …

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Whistle Blowing, Ben Depoorter, Jef De Mot Nov 2004

Whistle Blowing, Ben Depoorter, Jef De Mot

George Mason University School of Law Working Papers Series

For law enforcement purposes corruption and fraud are hard battles. Because of the highly secretive and premeditated nature of these crimes, prime witnesses are themselves often implicated in the fraudulent transaction. Promises of immunity and whistle blowing rewards are often required to resolve these information asymmetries. These insights have set a trend, both in scholarship and law enforcement practice, towards reward-based approaches (carrots), as an alternative or complement to punishment based deterrence (sticks). Applying the U.S. False Claims Act (FCA) as an analytical framework, we provide a critical review of the efficiency limitations of whistle blowing. More specifically, the formal …

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The Law And Economics Of Cybersecurity: An Introduction, Mark F. Grady, Francesco Parisi Nov 2004

The Law And Economics Of Cybersecurity: An Introduction, Mark F. Grady, Francesco Parisi

George Mason University School of Law Working Papers Series

One of the most controversial theoretical issues of our time is the governance of cybersecurity. Computer security experts, national security experts, and policy analysts have all struggled to bring meaningful analysis to cybersecurity; however, the discipline of law & economics has yet to be fully applied to the issue. This introduction presents work by leading national scholars who examine this complex national security challenge from a law and economics perspective. The focus spans from a discussion of pure market solutions to public-private issue analysis, providing a valuable basis for policy considerations concerning the appropriate governmental role on the issue of …

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Screening, Plea Bargains And The Innocent Problem, Oren Gazal Nov 2004

Screening, Plea Bargains And The Innocent Problem, Oren Gazal

Law & Economics Working Papers Archive: 2003-2009

Courts in common law countries reject plea-agreements only when the agreed upon sentence is seen as exceedingly lenient. This judicial intervention is designed to ensure that plea-bargaining does not undermine deterrence. Many legal scholars argue against this policy, claiming that courts should prohibit plea-bargaining all together. They argue that the plea-bargaining system increases the risk of wrongful convictions. Economists often criticize this judicial intervention as well, but for a different reason. Rather than advocating the abolition of plea-bargaining, many economists argue that the courts should accept all plea-agreements without review. They claim that plea-bargaining can help ensure an efficient use …

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Corporate Defendants And The Protections Of Criminal Procedure: An Economic Analysis, Vikramaditya S. Khanna Sep 2004

Corporate Defendants And The Protections Of Criminal Procedure: An Economic Analysis, Vikramaditya S. Khanna

Law & Economics Working Papers Archive: 2003-2009

Corporations are frequently treated as “persons” under the law. One of the fundamental questions associated with this treatment is whether corporations should receive the same Constitutional protections and guarantees as natural persons. In particular, should corporations receive the Constitutional protections of Criminal Procedure? After all, corporations cannot be sent to jail so the sanctions they face are essentially the same as in civil proceedings. If so, then why not have the same procedural protections for corporate defendants in civil and criminal cases? Little scholarly analysis has focused on this issue from an economic perspective and this article aims to fill …

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The Market For Criminal Justice: Federalism, Crime Control And Jurisdictional Competition, Doron Teichman Sep 2004

The Market For Criminal Justice: Federalism, Crime Control And Jurisdictional Competition, Doron Teichman

Law & Economics Working Papers Archive: 2003-2009

For the most part, the United States has a decentralized criminal justice system. State legislatures define the majority of crimes and set out the punishments for those crimes. In addition, the enforcement of criminal laws lies, in most cases, in the hands of local law enforcement agencies. This article points out how this decentralized structure drives local jurisdictions to harshen their criminal justice system in order to displace crime to neighboring jurisdictions. More precisely, local jurisdictions can attempt to displace crime in two distinct ways. First, they can raise the expected sanction to a level that is higher than that …

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Sex, Shame, And The Law: An Economic Perspective On Megan's Law, Doron Teichman Sep 2004

Sex, Shame, And The Law: An Economic Perspective On Megan's Law, Doron Teichman

Law & Economics Working Papers Archive: 2003-2009

This Article focuses on the question, how should policymakers aiming to minimize the cost of sanctioning utilize legal and nonlegal sanctions when designing a system of criminal sanctions. After presenting the general economic case for the use of nonlegal sanctions the article turns to present a model of shaming, which unlike existing models, incorporates the endogenous effects of legal and nonlegal sanctions. This model demonstrates that tailoring an efficient regime that combines legal and nonlegal sanctions might be more difficult than previously perceived by law and economics scholars. A specific case study presented in this article is of the current …

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A Public Choice Theory Of Criminal Procedure, Vikramaditya S. Khanna, Keith N. Hylton Aug 2004

A Public Choice Theory Of Criminal Procedure, Vikramaditya S. Khanna, Keith N. Hylton

ExpressO

We provide a more persuasive justification for the pro-defendant bias in Anglo-American criminal procedure than the most commonly forwarded justifications to date. The most commonly forwarded rationale for the pro-defendant bias is that the costs of false convictions – specifically, the sanctioning and deterrence costs associated with the erroneous imposition of criminal sanctions – are greater than the costs of false acquittals. We argue that this rationale provides at best a partial justification for the extent of pro-defendant procedural rules. Under our alternative justification, pro-defendant protections serve primarily as constraints on the costs associated with improper enforcement or rent seeking …

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Pour Encourager Les Autres? The Curious History And Distressing Implications Of The Criminal Provisions Of The Sarbanes-Oxley Act And The Sentencing Guidelines Amendments That Followed, Frank O. Bowman Iii Apr 2004

Pour Encourager Les Autres? The Curious History And Distressing Implications Of The Criminal Provisions Of The Sarbanes-Oxley Act And The Sentencing Guidelines Amendments That Followed, Frank O. Bowman Iii

Faculty Publications

This Article presents a legislative history of the Sarbanes-Oxley Act and the subsequent amendments to the U.S. Sentencing Guidelines. It explains the surprising interaction between the civil and criminal provisions of Sarbanes-Oxley. The Article also provides a dramatic and detailed account of the interplay of political interests and agendas that ultimately led to large sentence increases for serious corporate criminals and blanket sentence increases for virtually all federal fraud defendants. The tale illuminates the substance of the new legislation and sentencing rules, but is more broadly instructive regarding the distribution of power over criminal sentencing between the three branches and …

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Nietzsche In Law's Cathedral: Beyond Reason And Postmodernism, John Linarelli Jan 2004

Nietzsche In Law's Cathedral: Beyond Reason And Postmodernism, John Linarelli

Scholarly Works

Nietzsche had very little to say about law and what he did say is fragmentary and sporadic. Nietzsche's philosophy, however, offers a basis for theorizing about law. I use Nietzsche's important works to interpret two major movements in legal thought. The first part of the paper examines how Nietzsche's philosophy augments our understanding of deontological theories about the law. Nietzsche produced a substantial ethical theory. The second part of the paper examines how Nietzsche's philosophy helps us to understand law and economics. Nietzsche had a great deal to say about the intellectual predecessor to law and economics, utilitarianism, and his …

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The Transnational And Sub-National In Global Crimes, Lan Cao Jan 2004

The Transnational And Sub-National In Global Crimes, Lan Cao

Faculty Publications

No abstract provided.

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Insuring Against Terrorism -- And Crime, Saul Levmore, Kyle D. Logue Jan 2003

Insuring Against Terrorism -- And Crime, Saul Levmore, Kyle D. Logue

Articles

The attacks of September 11th produced staggering losses of life and property. They also brought forth substantial private-insurance payouts, as well as federal relief for the City of New York and for the families of individuals who perished on that day. The losses suffered during and after the attacks, and the structure of the relief effort, have raised questions about the availability of insurance against terrorism, the role of government in providing for, subsidizing, or ensuring the presence of such insurance, as well as the interaction between relief and the incentives for taking precautions against similar losses in the future. …

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How To Construct An Underclass, Or How The War On Drugs Became A War On Education, Eric D. Blumenson, Eva Nilsen Jan 2002

How To Construct An Underclass, Or How The War On Drugs Became A War On Education, Eric D. Blumenson, Eva Nilsen

Faculty Scholarship

The war on drugs has spawned a second front-a war on education. The casualties of this war are all poor or lower-income people who cannot afford to buy a private education. This article details the consequences of this other war, and explores some legislative and litigation strategies for reclaiming educational opportunity for all Americans. First, however, we must set out in more detail the laws and policies that now deploy educational privation as punishment in public schools, colleges, and prisons.

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Ever The Twain Shall Meet, Fred S. Mcchesney May 2001

Ever The Twain Shall Meet, Fred S. Mcchesney

Michigan Law Review

Instinctively, corruption is deplorable. Nobody likes private citizens paying governmental officials for special favors. Few have deplored corruption longer or in greater detail than economist Susan Rose-Ackerman. In Corruption and Government, Professor Rose-Ackerman discusses how corruption starts ("causes"), why it is bad ("consequences"), and how to stop it ("reform"), principally from an economic perspective. Professor Rose-Ackerman's interest in corruption derives partly from her outside work with international agencies, especially time spent at the World Bank - "a transformative experience" (p. xi). Her twenty-two page bibliography ranges across sources in economics and politics, plus many documents from the World Bank and …

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The 2001 Federal Economic Crime Sentencing Reforms: An Analysis And Legislative History, Frank O. Bowman Iii Jan 2001

The 2001 Federal Economic Crime Sentencing Reforms: An Analysis And Legislative History, Frank O. Bowman Iii

Faculty Publications

This Article has four parts. First, it describes the general structure of the Federal Sentencing Guidelines and the approach to sentencing economic crimes in effect between 1987 and 2001. Second, it outlines the defects in the former economic crime guidelines that led to the call for reform. Third, it describes the process undertaken by the Sentencing Commission that led to the passage of the 2001 economic crime amendments and, in so doing, provides a roadmap to sources of legislative history. Fourth, it explains and analyzes the new guidelines in light of their legislative history, with primary emphasis on the consolidated …

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Alan Isaacman And The First Amendment: A Candid Interview With Larry Flynt's Attorney, Clay Calvert, Robert D. Richards Jan 2001

Alan Isaacman And The First Amendment: A Candid Interview With Larry Flynt's Attorney, Clay Calvert, Robert D. Richards

Cardozo Arts & Entertainment Law Journal

No abstract provided.

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Editor's Observations: The 2001 Economic Crime Package: A Legislative History, Frank O. Bowman Iii Jul 2000

Editor's Observations: The 2001 Economic Crime Package: A Legislative History, Frank O. Bowman Iii

Faculty Publications

On April 6, 2001, the U.S. Sentencing Commission approved a group of amendments to guidelines governing the sentencing of economic crimes. These measures, collectively known to as the “economic crime package,” are the culmination of some six years of deliberations by both the Conaboy and Murphy Sentencing Commissions working together with interested outside groups such as the defense bar, the Justice Department, probation officers, and the Criminal Law Committee of the U.S. Judicial Conference, The package contains three basic components. First, the now-separate theft and fraud guidelines, Sections 2B1.1 and 2F1.1, will be consolidated into a single guideline. Second, the …

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Briefing Paper On Problems In Redefining "Loss" (U.S. Sentencing Commission Economic Crime Symposium), Frank O. Bowman Iii Jul 2000

Briefing Paper On Problems In Redefining "Loss" (U.S. Sentencing Commission Economic Crime Symposium), Frank O. Bowman Iii

Faculty Publications

On October 12-13, 2000, the U.S. Sentencing Commission sponsored its Third Symposium On Crime and Punishment in the United States: Federal Sentencing Policy for Economic Crimes and New Technology Offenses. The afternoon of the first day of the meeting was devoted to discussing the concept of “loss” as a measurement of defendant culpability and offense seriousness. The conferees were divided into small groups to discuss discrete sub-issues relating to “loss” and its place in sentencing economic crimes under the Guidelines. Following the small group discussions, the discussion leaders (“facilitators”) addressed a plenary session of the conference to report on the …

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A Judicious Solution: The Criminal Law Committee Draft Redefinition Of The Loss Concept In Economic Crime Sentencing, Frank O. Bowman Iii Jan 2000

A Judicious Solution: The Criminal Law Committee Draft Redefinition Of The Loss Concept In Economic Crime Sentencing, Frank O. Bowman Iii

Faculty Publications

In December 1999, the United States Sentencing Commission (Commission), an institution that had been in suspended animation for over a year with all seven voting seats vacant, fluttered its eyelids and came back to life. An agreement between the Senate and the White House produced seven new Commissioners: five sitting federal judges, the former General Counsel of the Commission, and a law professor. The new group began work immediately, making itself accessible in meetings with lawyers and judges around the country, exuding an air of intelligence and collegiality, and dispensing in short order with a backlog of amendments to the …

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Revenge On Utilitarianism: Renouncing A Comprehensive Economic Theory Of Crime And Punishment, William L. Barnes Jr. Apr 1999

Revenge On Utilitarianism: Renouncing A Comprehensive Economic Theory Of Crime And Punishment, William L. Barnes Jr.

Indiana Law Journal

No abstract provided.

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