Search Results

This chapter begins with an overview of consumption and its centrality in postindustrial nations, particularly the United States. It then turns to how excessive consumption is marketed to unwary individuals. The next section looks generally at legal interventions regarding excessive consumption. An overarching theme emerges: permit but discourage. Finally, the chapter focuses on recreational drugs. Here, the heaviest machinery of the law—criminal sanctions—is routinely invoked and has been for decades. It shows that criminal sanctions are especially employed in America with significant consequences for rates of incarceration and, particularly, negative impacts on the black community.

This chapter addresses why the institution of punishment should exist at all. It argues that a workable theory of why the criminal sanction should exist needs to rest primarily on normative, non-consequentialist claims, and needs to be concerned in part with consequences. In particular, such an account must contain a deontological element, related to how the offender should be addressed as an agent capable of moral deliberation; yet must nevertheless consider preventive effects to some degree so that, in principle, the system of criminal law and sanctions could be abolished, were it no longer deemed essential to prevent crime. The chapter develops a proposed justification for the criminal sanction that emphasizes the idea of penal censure, but gives a limited complementary role to prevention.

This chapter examines the causes of corporate crime from an economic perspective. More specifically, it considers why corporate misconduct occurs and looks at the factors that law enforcement authorities and corporate monitors take into account in determining how best to deter it. It begins with a review of the fundamental assumptions of the economic model of crime and its origins, along with the empirical evidence on its practical relevance. It then assesses the implications for the choice of enforcement strategy and design of sanction, the empirical literature on corporate criminal sanctions, and practical implications for the design of enforcement institutions. It also explores the role played by rational, self-interested individuals in causing or preventing corporate crimes and argues that corporate criminal enforcement must influence the acts and omissions of individuals within the corporation in order to successfully combat corporate misconduct.

This chapter explains why only the state may inflict criminal sanctions and presents arguments against privately inflicted criminal punishment. It suggests that there is a link between the state's judgments concerning the wrongfulness of the act and the infliction of sanctions, and that this link is indispensable to the legitimacy of the infliction of criminal sanctions triggered by violating state-issued prohibitions. The chapter includes comments by some of the nation's top legal scholars from the field of criminal law, tackling topics such as the need to eliminate the divide between public officials and private citizens with respect to infliction of criminal sanctions.

Because fast and frugal heuristics theorists believe that people make all decisions, including decisions about whether to comply with legal regulations, by looking to a small number of lexically-processed decision-relevant cues, they argue that we will not manipulate crime rates as well by tinkering with expected punishments as we will by, for instance, engraining habits or conforming law to pre-existing social norms or altering the capacity of putative violators to engage in unwanted conduct. Heuristics and biases theorists believe that would-be criminals may care about the expected value of crimes they are considering committing, but that they often misestimate the probability of being sanctioned and evaluate sanctions in ways that are highly contextually sensitive. The chances of punishment may often be underestimated, and both the experienced and remembered pain of the punishment that criminals actually suffer may be counter-intuitively low. Incapacitationists should note that F&F scholars are wary of using multi-cue regression measures in predicting future dangerousness, and that H&B work should lead us to worry that we will systematically overestimate the dangerousness of criminals.

This chapter examines the potentially adverse effects of corporate civil liability and the role of prosecutors in regulating corporate behavior. After considering the distinction between a criminal enterprise case and a civil regulatory action, it discusses measures necessary to push civil regulatory liability in the direction of criminal liability. It then describes three key actors on the enforcement side of corporate regulation: private actors, criminal prosecutors, and regulatory bodies such as the Securities and Exchange Commission (SEC). It also explores problems that might arise from reforming the civil regulatory action by focusing on the SEC enforcement action. It argues that agencies should have a greater role in corporate regulation and that criminal sanctions are most effective as the cap of a pyramid of enforcement. Finally, it contends that civil enforcement must be augmented to make it more attractive to enforcers and reduce the need for criminal enforcement.

This chapter analyzes the role of fines as a criminal sanction in the United States and the potential for fines to play a larger role in crime control. The main conclusions are: fines are economical only in relation to other forms of punishment; for many crimes fines will work well for the majority of offenders but fail miserably for a significant minority; fines present a number of significant administrative challenges; and the political economy of fine imposition and collection is complex. With the caveats that jurisdictions vary tremendously and that there are large gaps in our knowledge about them, a model is developed showing that it is possible to expand the use of fines as a criminal sanction if institutional structures are developed with these concerns in mind. A commentary is included at the end of the chapter.

This chapter presents an authoritative overview of the economics of crime control, with particular emphasis on Gary Becker's arguments as set forth in his seminal paper, Crime and Punishment: An Economic Approach. It begins with a description of Becker's principal conclusions and then explores some of the developments in the literature since the publication of his paper. Topics range from the economic model of criminal behavior to the optimal size of criminal sanctions the state should impose, the optimal type of sanctions it should imposed, and the economics of fines and incarceration. The chapter includes comments by some of the nation's top legal scholars from the field of criminal law, tackling relevant issues such as deterrence and the law, economics, and neuroethical realism of crime control.

This chapter was written the summer before September 11th for an interdisciplinary art theory conference on transitional justice, which was part of the major contemporary art event Documenta 11. The setting was New Delhi, and part of the inspiration was Mahatma Gandhi, as well as forms of narrative associated with the contemporary art movement. In this chapter the author builds on the conclusions from her 2000 book, Transitional Justice. This chapter seeks to keep alive the appreciation of the complex normativity of transition; an even greater challenge today given the tendency to bureaucratize or legalize transitional justice, severing or attenuating its connection to the political. The chapter also deals with transitional justice’s relationship to the concepts of collective truth, impunity, the limited criminal sanction, and truthtelling.

This chapter first sets out the purpose of the book, which is to encourage a normative rethinking of imprisonment as a criminal sanction. The book's main focus is an examination of the restrictions and deprivations imprisonment legitimately imposes on serious offenders. It argues that many countries imprison too many offenders, for too long, under conditions that cannot morally be justified. Many of those imprisoned are themselves victims of severe social deprivation; or they are not quite fit subjects for legal punishment in other respects. It urges less use of imprisonment generally, and less harsh and restrictive forms of it when it is employed. An overview of the subsequent chapters is also presented.

Article 31 TEU The European Parliament and the Council may, by means of directives adopted in accordance with the ordinary legislative procedure, establish minimum rules concerning the definition of criminal offences and sanctions in the areas of particularly serious crime with a cross-border dimension resulting from the nature or impact of such offences or from a special need to combat them on a common basis.

This chapter suggests a way of enriching the normative theorization of the interface between labour law and criminal law in Canada. It homes in on the role of the criminal law in enforcing worker-protective labour standards, in particular with regard to workplace health and safety. Focusing specially on penal policy in respect of violations of health and safety standards by employing enterprises and by individual members of the staff of those enterprises, this chapter contends that there is real scope for bringing to bear the principles and tenets of restorative justice upon the practice of applying criminal or quasi-criminal sanctions in this regulatory domain. This might generate some more nuanced and creative regulatory approaches than those which are sometimes manifested in high-profile corporate criminal prosecutions and by the imposition of blockbusting fines upon such corporations. Moreover, the chapter argues that certain of the currently much-discussed human capabilities approaches to legal regulation might be deployed to develop and flesh out a methodology of restorative justice in this particular context.

This chapter presents an authoritative overview of criminalization and sharing wrongs as well as the idea that crime should be a “public” wrong. It includes comments by some of the nation's top legal scholars from the field of criminal law, tackling topics such as sharing wrongs between criminal and civil sanctions, the dangers of sharing wrongs with society, sharing the burdens of justice, contractualism, public versus private retribution, and delegated revenge.

To ensure that substantive criminal law achieves its intended objectives, it is necessary both to investigate alleged crimes and to prosecute the alleged offenders, and then to carry out any sentence imposed. However, in democratic societies committed to human rights, ensuring effective prosecutions cannot be the sole objective. As it is unacceptable to punish the innocent with the force of criminal sanctions such as imprisonment, the process of determining guilt or innocence needs to be fair. So the right to a fair trial carries a prominent place in any general international human rights treaty or national constitutional bill of rights, along with associated principles like the legality and non-retroactivity of criminal law. This chapter examines criminal law in detail, starting with the basic issues of the institutional framework, an overview of measures adopted, legal competence, territorial scope, human rights, and overlaps with other (non-JHA) EU law. It then examines the EU’s harmonization of domestic criminal procedure, in the specific fields referred to in the Treaty of Lisbon in turn: evidence law, suspects’ rights, and victims’ rights.

This chapter examines the relationship between gravity and global adjudicative authority—the global community’s right to create adjudicative institutions, and for those institutions to adjudicate crimes. It argues that such authority is justified when two conditions are met: first, there must be a globally shared norm proscribing the conduct and subjecting violators to criminal sanction; and, second, the global community’s adjudicative goals must be sufficiently important to outweigh any countervailing goals, particularly those of relevant national communities. Additionally, to best promote the regime’s legitimacy, the situations and cases adjudicated must be those that achieve the global community’s most important goals most efficiently. The chapter proposes a reconceptualization of gravity to help ensure these conditions are met.

This chapter compares the historical development and use of criminal law at work in the United Kingdom and in Ontario, Canada. Specifically, it considers the use of the criminal law both in the master and servant regime as an instrument for disciplining the workforce and in factory legislation for protecting workers from unhealthy and unsafe working conditions, including exceedingly long hours work. Master and servant legislation that criminalized servant breaches of contract originated in the United Kingdom where it was widely used in the nineteenth century to discipline industrial workers. These laws were partially replicated in Ontario, where it had shallower roots and was used less aggressively. At the same time as the use of criminal law to enforce master and servant law was contested, legislatures in the United Kingdom and Ontario enacted protective factory acts limiting the length of the working day. However, these factory acts did not treat employer violations crimes; instead, they were treated as lesser ‘regulatory’ offences for which employers were rarely prosecuted.

Where the overall validity of a contract is not in doubt, a party may be allowed to rely on the invalidity of one of its clauses because it has not become part of the contract or is found to be ‘inappropriate’, ‘unreasonable’, ‘unfair’, contravenes ‘good faith’ or in some other way ‘grossly disadvantages’ a party. Some legal systems allow the judge to strike down such clauses only where they have been preformulated by one party and thus form part of its ‘standard terms of business’. Judicial control may also be limited to cases where the clause disadvantages a ‘consumer’. The chapter discusses the purposes of the judicial control of such clauses and the reasons on which their ‘unfairness’ may be based. In a final section the chapter deals with the preventive control of such clauses by way of criminal sanctions, group actions, and administrative controls.

This chapter examines the regulation of third party content transmitted by Internet Service Providers (ISPs), though that general term of art needs definition for the purposes of the chapter. The chapter considers in turn three aspects of the transmission of content over ISPs, though not the provision of content owned by or affiliated with those ISPs. The aspects considered are in turn: