Search Results

The concluding essay compares the imperative mode of the commandment with the notion of “intimacy” with the commandment experienced by those who so value love's need to express itself that they do not need to be commanded. Kierkegaard's relation to his Lutheran heritage is ambivalent – he sees himself as a corrective to Luther who was himself a corrective to other errors. The Lutheran dimension of simul justus et peccator is found in the paradoxical dual goals of leniency and rigor, inwardness and outwardness, vision and blindness.

This concluding chapter sums up the key finding of this study on the history of plea bargaining. The result indicates that plea bargaining emerged in Boston, Massachusetts during the 1830s and 1840s as part of a political struggle to stabilize and legitimate newly established democratic institutions. The Bostonians' reworked elements of episodic leniency created a legal practice, known as plea bargaining, that constituted a new legal and political form for an age of popular politics. The chapter also discusses the political and legal implications of plea bargaining. These include the emergence of a powerful system of social control, the reassertion of a kind of secular community, and the creation of links between the courts and employers that reinforced the workplace as a central element of societal social control.

This chapter details the transition of China’s death penalty practice from “killing many” to “killing fewer” in the new century and how the ‘severity’ and ‘leniency’ dialectic was played out based on the new policy of “balancing leniency and severity”.

This chapter sets the scene and provides context for a discussion of the range of sanctions now being used to deal with established cartel violations. The point is emphasised that there is now a complex typology and geography of sanctions in relation to international cartels — across jurisdictions and at different legal levels (international, European, and national). Important critical themes of discussion are also outlined — the impact of leniency on the choice and operation of sanctions, the way in which the range and severity of sanctions has increased, and the cost and effectiveness of this process of penal expansion. The purpose of the chapter is to provide a critical framework for the detailed discussion of sanctions contained in the following chapter.

This chapter provides a detailed account and critical evaluation of the range of sanctions now used in the European context to deal with cartel violations, as applied to both corporate and individual offenders. The core of the discussion is the use of financial penalties — still the primary sanction imposed upon corporate actors — and the increasing resort to criminal penalties and in particular prison terms, which may be applied to individual offenders at a national level. These penal developments and their origins are fully debated, and the evidence to date regarding the comparative effectiveness of these measures is considered. Necessarily there is also discussion of the pragmatic moderation of sanctions, through strategies such as leniency programmes, penalty discounts, and shorter settlement procedures, all of which have become an important aspect of this penal landscape. Other sanctions, notably termination orders, private claims for compensation, disqualification, and confiscation are also discussed, and generally the need to establish a coherent and sensible ordering of sanctions is addressed.

Having indicated that one of the main problems in the regulation of cartels is now that of securing sufficient evidence of the illegal activity, this chapter explores the use over the last twenty years of a significant enforcement device designed to address this difficulty. Leniency (or amnesty) programmes were pioneered by the US Department of Justice in the early 1990s, and this strategy was quickly taken up also by the European Commission and many national competition authorities elsewhere. The trick is to offer immunity from prosecution and sanctions to the first member of a cartel to provide legally valuable evidence of the prohibited conduct, thus exploiting the uneasy suspicion of each other which is a natural internal feature of cartel conspiracies. Competition regulators claim that leniency programmes have been successful in increasing the rate of detection and prosecution of hard core cartels. This chapter provides a critical evaluation of the impact of leniency programmes, exploring their dynamic and practical operation and relating their use to the operation of the system of sanctions employed to deal with ‘convicted’ companies and cartelists.

This chapter explores the cultural tradition of episodic leniency among the imaginative constructions of the common law in Great Britain and America. It investigates the courts' use of episodic leniency for purposes of social control during the early nineteenth century, and highlights the developments in the legal cultural tradition of leniency and the influences that shaped them. The chapter describes various forms of leniency and suggests that leniency, along with the practice of admonition, constituted a crucial component of the cultural repertoire on which plea bargaining drew.

This chapter investigates the influence of improvisation in law on the emergence of plea bargaining in the U.S.A. It identifies what circumstances combined to cause episodic leniency to be recrafted into the distinctive legal form known as plea bargaining, and suggests that the assumed origin of plea bargaining in the 1830s and 1840s coincided with a perceived crisis of unrest and social instability in the republic. The chapter also discusses issues and events that may have influenced the emergence of plea bargaining, including movements for social reform and popular challenge to the common law.

This chapter examines the transformation of plea bargaining in the U.S.A. during the late nineteenth century and the early twentieth, discussing the increase in guilty pleas through the 1870s and their decline in the 1890s because of the economic crisis. It explains that exercise of leniency prior to the 1890s involved shifts in the entire sentencing structure as Yankees attempted to ward off Irish political encroachment. The chapter also discusses the issues concerning the struggle for control of socializing institutions, and the changing patterns of social concessions and their incidence.

John Finnis' writings on punishment are characterized by a retributivist pluralism: retributive justice is essential and fundamental to the justification of punishment, but other values also play an important justificatory role, both with regard to the institution in general and to particular decisions made within it, such as sentences passed by judges. Although mercy is widely supposed to be a value that tempers retributive justice in deliberation about punishment, it does not receive any sustained treatment in Finnis' writings. However, taking Finnis' own philosophical engagement with Shakespeare as an inspiration, this chapter investigates the understanding of justice and mercy in Measure for Measure. The play reveals that the question of when to apply the law strictly and when to exercise leniency is often highly complex, and that a satisfactory response to it transcends both the rigour of the ‘precise’ Angelo and the laxity of the self-indulgent Duke. Instead, it is Isabella who offers the most compelling portrayal of ‘lawful mercy’ as a compassionate departure from the strict application of law, a departure that is nonetheless guided by reason.

The main purpose of this chapter is to articulate the different types of vagueness, and related linguistic indeterminacies, that we find in statutory language and to explain their different rationales. The chapter argues that the various normative considerations involved in employing vague terms in legislation depend on the kind of vagueness in question. While some cases of vagueness in law are concerned with fairly standard problems of borderline cases, other are not. I also argue that semantic vagueness can be distinguished from conversational vagueness, which we also find in law, and that vagueness in law should be clearly distinguished from cases of ambiguity and polysemy.

This chapter determines whether in practice the concept of due process obstructs a project of antitrust criminalization which respects the procedural requirements of European human rights law. It articulates the legal framework informing the challenges of due process which are analysed; specifically, it highlights how the introduction of criminal cartel sanctions ensures the applicability of Article 6 ECHR to antitrust proceedings. It then examines whether, in applying Article 6 ECHR, one must in fact strengthen certain procedural rights: it examines the validity of the ‘strengthening of rights’ contention. Once the extent of such validity is established, the chapter examines the actual impact of the ‘strengthening of rights’ contention. Two inquiries are made in this context, namely, whether: (i) any ‘strengthening of rights’ required has a potential negative impact upon European antitrust enforcement; and (ii) the European antitrust authorities can compensate for any potential negative impact identified.

This chapter aims to contribute to the literature on European cartel criminalization by providing a systematic analysis of the challenge of design posed for such criminalization by the investigative mechanism of leniency/immunity. In doing so, it analyses how one can ensure the peaceful co-existence of administrative leniency/immunity and criminal cartel sanctions. In addition to this, it analyses the unique challenge of using an immunity policy when criminal cartel sanctions are part of the enforcement landscape.

During the last twenty-five years, we have witnessed a sea of change in the crusade against cartels. There are many reasons to believe that the environment is far less hospitable to firms forming and operating a cartel. Nevertheless, there is still the question for which we have yet to get an answer: Are there fewer cartels? Has the expansion of laws prohibiting collusion and the intensification of enforcement actually reduced the presence of cartels in the global economy? The purpose of this chapter is to put forth some concerns emanating from the lack of an answer, suggest some policies while we wait for an answer, and encourage competition authorities to work with academic scholars to find an answer.

This chapter places Philoxenos of Mabbug’s Christological polemics in the context of his theology of episcopal administration. Philoxenos built a reputation through vehement opposition to the Council of Chalcedon, reaching a peak in 512 when he consecrated Severus of Antioch as patriarch. Once in positions of power, however, both Philoxenos and Severus began to incline toward pragmatic leniency. This chapter argues that this balancing act reveals a broader theological principal that was more important to the miaphysites than Christology. Philoxenos and Severus referred to this principal as “oikonomia,” a term used to describe both episcopal administration and a vision of God’s providential condescension for human salvation through the Incarnation. It was not contradictory for Philoxenos to advocate compromise for the sake of oikonomia, because success in defeating Chalcedon was not merely winning an intellectual argument over doctrine, but ensuring that laity, monastics, and clergy had right access to God.

In recent years, Brazil has become a major player in anti-corruption investigations and enforcement worldwide. The adoption of the Clean Company Act in 2013 signified a new chapter in corporate liability, promoting compliance as well as providing new enforcement tools for prosecutors faced with issues both domestically and abroad. The Lava Jato, or Car Wash, investigation, which began in 2014 and has now gone through numerous phases, in the process implicating many companies, Brazilian and foreign, as well as pubic officials, is ongoing. As the result of Lava Jato, Brazil has vaulted into the forefront of international cooperation efforts in the anti-corruption field. This chapter explains these developments, and endeavors to also explain the details of the Brazilian legislation, which while spurred by the OECD Antibribery Convention, is distinct in its scope and approach, as well as the allocation of enforcement authority and responsibilities among different government agencies and the Brazilian authorities’ compliance expectations. The use of negotiated resolutions, including plea bargains, and collaboration agreements, has dramatically increased, but issues remain as to whether all enforcement authorities will give effect to these agreements.

This chapter presents CADE’s experience with the use of guidelines to promote competition enforcement in Brazil. This instrument enables competition authorities to send clear messages to the private sector and strengthen legal certainty in the application of competition legislation. In recent years, CADE has issued a few new competition guidelines, namely for compliance programmes, leniency agreements, settlement agreements, and gun jumping. In addition, the former Merger Horizontal Guidelines have been replaced, and at least one other guideline is in the pipeline for merger remedies. These guidelines shed light on key aspects of CADE’s understanding of the Brazilian national legislation, concerning both substance and procedure issues. The chapter concludes by stressing that these guidelines are often well perceived by the local competition community, as their draft versions previously gather private inputs through public consultations, reflect the enforcer’s perspective, and enable greater predictability in the application of Brazilian Competition Law.

The witch-hunt narrative drowned out all accounts of social and legal responses to child sexual abuse in America during the McMartin era. This chapter considers the extensive evidence from that era that contradicts that narrative. It surveys the extent to which child sexual abuse was minimized and denied while the McMartin case unfolded. This chapter examines specific evidence concerning ritual abuse and child pornography, phenomena that the witch-hunt narrative minimizes or denies. The chapter also argues that prosecution of this crime is difficult, not easy, and that subsequent penalties are often surprisingly lenient, although strict sentences tend to receive all the publicity. This is the unacknowledged history of our social and legal responses to child sexual abuse in America.