|Miriam Baer |
Choosing Punishment, 92 B.U. L. REV. 577 (2012 )
In this article, Baer sets forth two propositions. First, at a policy-making level, it is easier to punish than it is to regulate. That is, it is easier to attract public and political support for state-sponsored punishment than it is to attract similar support for regulation. She defines “punishment,” as any retributively motivated government action or response.
Second, this preference for punishment may not be particularly healthy. No doubt, there are many good reasons for supporting the government when it imposes just deserts or communicates the public’s moral condemnation. Moreover, it is likely impossible to eradicate retributive motivations that are hard-wired into our collective DNA. However, she argues that the resources spent on punishment are resources that might be spent elsewhere. Even worse, by overemphasizing punishment, we may undermine and crowd out the non-punitive, regulatory alternatives that are more adept at averting disastrous outcomes in the first place. Accordingly, we should worry about punishment’s effect on all government institutions, and not just on the criminal justice system.
In this article, she focuses on corporate governance regulation and policy by explaining why public actors choose retributive responses and then theorizes how those responses are likely to affect the legal institutions that dominate corporate governance law. She then tackles the normative point. Although punishment offers a number of benefits, it may leave society worse off over the long term. She concludes with suggestions for further inquiry.
|Michael Cahill |
Criminal Law, Aspen Treatise Series, 2d ed. (2012) (with P. Robinson)
This treatise is a comprehensive reference work describing the major principles and doctrines of American criminal law. The book summarizes and analyzes the provisions of the highly influential Model Penal Code and details how the criminal codes of various jurisdictions follow or depart from the Code’s rules. It also elaborates the major theoretical and policy debates underlying criminal law and demonstrates how those debates play out in particular settings, influencing the shape of the law. Concepts and legal issues are illustrated and explained through the use of rich and detailed hypothetical narratives.
The new Second Edition expands the treatise’s discussion of the scope of criminalization, sentencing law and policy, and the participants in the criminal-justice process and their institutional roles. This edition also has new material on endangerment offenses, fraud offenses, and offenses targeting group criminality, as well as entire new chapters on possession offenses, offenses against public administration, and offenses against public values.