Deterrence Function Research Articles

Matsubara, Hideyo, Controlling Corporate Misconduct through Criminal Sanctions: From Deterrent Function to Defining Function

Matsubara, Hideyo, Controlling Corporate Misconduct through Criminal Sanctions: From Deterrent Function to Defining Function

The defensive secretion of Carabus lefebvrei Dejean 1826 pupa (Coleoptera, Carabidae): Gland ultrastructure and chemical identification

This study documents the defensive function of flavored humor secreted by the abdominal glands of Carabus lefebvrei pupae. The morphology and the ultrastructure of these glands were described and the volatile compounds of glands secretion were identified by gas chromatography/mass spectrometry. The ultrastructure analysis shows an acinose complex formed by about 50 clusters. Each cluster has 20 glandular units and the unit-composed of one secretory and one canal cell lying along a duct-belongs to the class 3 cell type of Quennedey (1998). In the cytoplasm, the secretory cell contains abundant rough endoplasmatic reticula, glycogen granules, numerous mitochondria, and many well-developed Golgi complexes producing electron-dense secretory granules. Mitochondria are large, elongated, and often adjoining electronlucent vesicles. The kind and the origin of secretory granules varying in size and density were discussed. The chemical analysis of the gland secretion revealed the presence of a mixture of low molecular weight terpenes, ketones, aldehydes, alcohols, esters, and carboxylic acids. Monoterpenes, especially linalool, were the major products. We supposed that ketones, aldehydes, alcohols, esters, and carboxylic acids have a deterrent function against the predators and monoterpenes provide a prophylaxis function against pathogens.

Compensation Function and Deterrence Effects of Private Actions for Damages: The Case of Antitrust Damage Suits

In this work we take the case of damages actions brought by victims of antitrust violation, and refer to the current discussion originated by the EC Commission's projected reform (the 2005 Green Paper), to show some of the many failures of damages actions in performing a deterrence function, and their dependence on the specific features of each case. These problems are analysed in a conceptual framework in which three sets of choices are identified, namely those related to: (a) the definition of the illegal conducts; (b) the management of the risk; (c) the management of the consequences. We illustrate how the three groups are relatively independent of each other, and use such independence to address the (supposed) conflict between deterrence and compensation. Three possible goals of a deterrence policy are considered: discouraging all illegal conducts, discouraging only those illegal conducts which are socially inefficient, avoid deterring legal conducts which are similar to illegal ones. For each of them, the possible disparities between optimal levels of deterrence and the effects of antitrust damages actions are shown, to conclude that some consequences of the proposed boost in damages actions (especially those in terms of over-deterrence) seem overlooked in the current discussions. Moreover, we maintain that the design of the reform should not be influenced by a given preference to deterrence or to compensation as the goal to be accorded priority, since they lie theoretically on autonomous grounds. Rather, attention should be paid to the empirical interferences, that may require corrective devices as may be the case with a continuous adjustment of Public Enforcement to restore appropriate levels of deterrence once the deterrence effects of the (reformed) private damages actions are observed.

DEVELOPING THE SINGLY CONSTRAINED GRAVITY MODEL FOR APPLICATION IN DEVELOPING COUNTRIES

This research aims to enhance the accuracy of the singly constrained gravity model by incorporating principles from fluid analogy theory. The method is based on an iterative process to generate and allocate trips in an origin-destination matrix and involves estimating the number of trips produced by and attracted to individual zones. The deterrence function and the attraction factor embedded within the model plays an important role in the relative attractiveness of each zone, while the fluid analogy method is used to allocate trips between zones. The method is applied to replicate the distribution of trip-lengths to work by motorcycle in the case-study city of Surabaya, Indonesia for a base year (1993) and for a horizon year (2003). The computed D-statistic and chi-square values indicate that the performance of the combined fluid-analogy and singly constrained gravity model output is better than the conventional singly constrained gravity model in this context

Avicenna's Deterministic Theory of Action and its Implication for a Theory of Justice

In this essay two issues are critically addressed, namely, the foundation of Avicenna's ethical determinism and its implication for a theory of justice. As to the first issue, it regards the analysis of Avicenna's deterministic theory notwithstanding his rare but ambiguous use of the free suggesting terms such as will, voluntary and choice. In such a theory, where everything is governed by the laws of pre-established harmony, the ethical evil done by man is viewed in the same way physical evil is, as contingent, minimal, determined by God, and having its proper function within world order and harmony. As to Avicenna's justification of punishment, one must recognize that Avicenna did not address the issue in its socio-juridical context. Rather, he addressed it from a religious point of view, but the implication for a theory of social justice seems to be obvious: because of universal determinism, including man's actions, all threats and promises (as well as punishment by human civil courts) have a deterrent function. Objections are raised against this deterministic philosophy to show that it is founded on a misleading argument of order and harmony. More objections are raised to show that Avicenna's conception of justice, based on determinism is inhumane and unsatisfactory.

Human Factors of Homeland Security

Humans play a role in all aspects of homeland security, including the functions of deterrence, detection, and response and in the capacities of both administrators and recipients of security procedures. The field of human factors has contributed to homeland security functions through design of user-centered technology and training programs, through metrics for assessing human performance, through environmental design, and through organizational changes targeting the larger sociotechnical system. In this chapter, we review these and other contributions and propose an agenda for future research and development on human factors of homeland security. We conclude that the field of human factors provides many low-cost, high-impact solutions that reach beyond the bounds of the human–single machine interface.

Stoneridge Investment Partners v. Scientific-Atlanta (8th Cir. 2006) What Makes it the Most Important Securities Case in a Decade?

Stoneridge Investment Partners, LLC v. Scientific-Atlanta, Inc. is scheduled for oral argument before the U.S. Supreme Court on October 9, 2007. It has been described as arguably the most important securities law case to reach the Court in a decade and as securities lawyers' Roe v. Wade. What is the legal issue that has occasioned this much attention? Phrased as a technical legal argument, plaintiff asserts that it may establish that outside actors committed a Rule 10b-5 violation on a theory of liability; in contrast, defendants assert that Central Bank of Denver v. First Interstate Bank of Denver, which found no statutory basis for aiding and abetting liability, precludes plaintiff's theory of liability. What is on trial before the Supreme Court, however, may be the future of private securities fraud litigation. Beyond the legal issue, the parties' positions reflect the differing views in the ongoing debate on the value of private securities fraud litigation. Does scheme liability enhance the compensatory and deterrent functions of private litigation or does it contribute to abusive private litigation that jeopardizes the US markets' competitive position? Thirty one amicus briefs have been filed in the case, about equally divided between the plaintiff's and the defendant's position. There was disagreement within the executive branch as to which side the Solicitor General should support. Most recently, the SEC announced that it would hold a spring 2008 roundtable to debate the various positions on private securities litigation. This paper will first analyze the legal issue in Stoneridge, describe the policy issues from the perspective of the amicus briefs and then provide some commentary on the case's significance to the law and policy of private securities fraud litigation. This paper is a work-in-progress, to be continued upon the Court's opinion.

A Deterrence Perspective on Damages for Fraudulent Misrepresentation

The purposes of this paper are twofold. First, it provides a theoretical framework for understanding the deterrence function of damages as a private legal remedy for fraudulent misrepresentation, explains, from an economic perspective, why fraudulent misrepresentation is socially undesirable, and then shows how the damages rule can be used as a deterrence instrument. Second, it conducts a brief analysis of the deterrence of fraudulent misrepresentation in English tort law and argues that, despite some imperfections, damages in tort law can provide a valuable complement to some traditional deterrence sanctions to fraud such as criminal law and regulation.

Statement of the Financial Economists Roundtable on the International Competitiveness of U.S. Capital Markets

The Committee on Capital Markets Regulation issued an Interim Report (known as the “Paulson Report”) near the end of 2006 that concluded that the U.S. “is losing its leading competitive position as compared to stock markets and financial centers abroad.” This report was quickly followed by a study, which reached similar conclusions, that was commissioned by New York Mayor Michael Bloomberg and Senator Charles Schumer and prepared by McKinsey & Co.At its July 2007 annual meeting, the Financial Economists Roundtable (FER) — a group of senior financial economists at universities and other organizations recognized as having made significant contributions to the finance literature—discussed the issues raised by the Report and decided to publish its own report. The report makes the following four policy recommendations: Securities class action suits —Abolish enterprise liability under rule 10b‐5 in situations arising out of security purchases and sales in the secondary trading market among outside shareholders, while retaining managerial and firm liability where the company itself or its insiders (officers and directors) transact to their own benefit. Imposing massive liability on a company that is not a party to the securities transactions and does not benefit from the fraud does not serve a deterrence function since it is the continuing shareholders of the corporation who bear the burden of what the company must pay if found guilty, either directly or indirectly through insurance premiums. Shareholder rights—Require all corporations to obtain shareholder approval to adopt a poison pill, regardless of whether a company has a staggered board. This requirement would conform to the broad principle that the board of any company should not be able to deny its shareholders the opportunity to decide on the merits of a takeover bid, and it would help restore the market for corporate control as an effective disciplinary mechanism for poorly performing boards and managers. Compliance costs associated with SOX §404—Adopt a statutory amendment that makes it optional for a company to adopt the §404 procedures for a management assessment and auditor attestation of the effectiveness of its internal controls, with the requirement that if the company chooses not to comply it must explain why in its financial statements. Thus, in effect, the FER effectively recommends that the market be allowed to determine the value of §404 compliance. If a company chooses not to comply, the market will assess its explanation for non‐compliance and will value the company accordingly. Maintaining open markets—Allow both foreign and U.S. firms to choose to report in conformity with either IFRS or U.S. GAAP. The FER recognizes both IFRS and U.S. GAAP as high‐quality accounting standards that provide reasonable foundations for financial reporting for investors. Allowing both foreign and U.S. firms to adopt whichever of these standards they believe to be the most cost‐effective provides an opportunity for the market and investors themselves to sort out which reporting standard best serves their interests.

Nothing to Lose: An Insurance Company's Duty of Good Faith and Fair Dealing, Punitive Damages, and The Legacies of Campbell

This article explores the potential evisceration of the deterrence function of punitive damages, one of the only economic incentives that deters insurance companies from opportunistically breaching their insurance policies. Readers will gain an understanding of why large punitive damages awards are essential in the insurance coverage field and how such awards may implicate due process standards. The article explains the constitutional limitations set forth by the U.S. Supreme Court in imposing punitive damages, and provides a roadmap of how lower courts and practitioners are presently applying these rules. *John N. Ellison is the managing stockholder and Timothy P. Law is a stockholder of the Philadelphia, PA, office of Anderson Kill & Olick, P.C., with offices in New York, NY; Newark, NJ; Philadelphia, PA; Washington, DC; Greenwich, CT; and Chicago, IL. Luke E. Debevec is an attorney in Anderson Kill's Philadelphia office. Anderson Kill represents policyholders exclusively in insurance coverage disputes across the country.

Capital Punishment Views in China and the United States

There is a lack of research on attitudes toward capital punishment in China, and there is even less research on cross-national comparisons of capital punishment views. Using data recently collected from college students in the United States and China, this study finds that U.S. and Chinese students have differences in their views on the death penalty and its functions of deterrence, rehabilitation, and incapacitation. This study also reveals that the respondents' perspectives of deterrence, rehabilitation, retribution, and incapacitation all affect their attitudes toward the death penalty in the United States, whereas only the first three views affect attitudes toward capital punishment in China. Furthermore, retribution is the strongest predictor in the United States, whereas deterrence is the strongest predictor in China.

Juvenile Transfers as Ritual Sacrifice

This article explores the dramaturgy of juvenile transfer provisions for the vestiges of ancient practices of child sacrifice that they reveal. Relying on theories by Girard, the social discord caused by young children who commit violent criminal acts is examined as a sacrificial crisis. The rhetorical demonization of the child criminal is described as their expurgation (as “Other”), the means by which their status is converted to scapegoat for the innocents their surrogacy benefits. Rather than deterrence or retribution functions, the legal response to children’s normative violations that involves transferring children to adult criminal court are presented here as an institutionalized and symbolic form of sacrifice to resolve a cultural crisis and ensure societal cohesion.

Constructive Trusts from a Law and Economics Perspective

I Introduction The 'constructive trust' is a court order declaring that the defendant (D) holds a disputed asset on trust for the plaintiff (P). Langbein says that the constructive trust is 'a species of equitable remedy, comparable in function to the injunction or decree of specific performance. The constructive trust is imposed coercively, as a means of correcting wrongdoing or preventing unjust enrichment.'1 By contrast, he goes on to say, '[T]he ordinary private trust is a consensual relationship voluntarily assumed by the trustee.'2 The constructive trust remedy is a proprietary one. It gives P a claim to the disputed asset itself. The alternative is a personal remedy for damages or an account of profits. A personal remedy gives P a money claim against D but nothing more. The difference matters particularly if D is bankrupt, but it is trite law that D's bankruptcy is neither a necessary nor a sufficient condition for granting P constructive trust relief.3 What are the factors that determine the availability of constructive trust relief? Langbein's statement suggests that the constructive trust remedy may serve either a deterrence function or a restitutionary function. The implication is that the deterrence function and the restitutionary function together account for all cases of constructive trust relief. However, as Chambers points out, sometimes the constructive trust serves what he calls a 'perfectionary' function: the court grants the remedy to enforce an express or implied bargain between P and D.4 For example, [End Page 217] constructive trusts are commonly imposed to perfect an agreement for the transfer of an asset by D to P.5 The law and economics literature to date has given the constructive trust scant attention. Langbein analyses the express trust from a law and economics perspective, but he pointedly leaves the constructive trust out of account.6 Levmore discusses the law of restitution from a law and economics perspective, but his focus is on the cause of action and not the choice of remedy.7 This paper aims to fill the gap. Part II below analyses five leading Australian, Canadian, and English cases: Hewett v.Court;8 Soulos v. Korkontzilas;9 Daly v. Sydney Stock Exchange Ltd;10 Chase-Manhattan Bank NA v. Israel-British Bank (London) Ltd;11 and Baumgartner v. Baumgartner.12 The argument, taking Chambers one step further, is that all constructive trusts are perfectionary at heart: in all cases (not some) the function of the remedy is to reproduce the outcome P and D themselves were likely to have agreed on up front if bargaining had been costless. The deterrence and restitutionary functions Langbein identifies are subsidiary to the perfectionary function. Giventhe constructive trust's perfectionary function, it is untrue, or at least an over-simplification, to say that the constructive trust is 'imposed coercively.' As it happens, the constructive trust is subject to more or less the same kind of contractarian analysis that Langbein applies to express trusts and that Easterbrook and Fischel apply to fiduciary relationships at large.13 Part III discusses the bankruptcy aspect, with reference back to the cases discussed in part II. [End Page 218] The paper focuses on Australian, English, and Canadian cases. There are differences in constructive trusts doctrine among the three countries. In Canada, the courts, following the United States lead, have developed the 'remedial' constructive trust to prevent unjust enrichment. The test for unjust enrichment depends on proof of (a) D's enrichment, (b) P's corresponding deprivation, and (c) the absence of a 'juridical justification' for the enrichment.14 The remedy is discretionary in the sense that, even if the case satisfies all three elements of the test, the court will still not necessarily impose the trust. The court may refuse to impose the trust on the ground that there are other remedies available to P 'which make the declaration of the constructive trust unnecessary or inappropriate...

Product Liability in the European Union: Compensation and Deterrence Issues

In Europe a common standard of strict liability has been introduced with the European directive 85/374. The implementation of this Directive has not led to an expansion of product liability cases. Moreover neither the product nor the insurance market has been dislocated as in the United States. Both the fact that most liability cases continue to be discussed under national legislation—even when it is based on liability with fault—and the different price of insurance in Eurpean Countries show that the directive did not reach its harmonisation goals. We discuss the optional provisions that limit strict liability under the directive, but claim that the scarce impact of liability laws—in spite of increasing concerns for product safety—may be due to compensation provided by the Welfare State and to the cost of access to justice in Europe. Compensation by the Welfare State is inadequate with respect to the internalisation of the cost of accidents especially when public institutions do not file claims against liable producers. Product safety regulation should have performed the deterrence function. However we also point out that the threat of reputation losses is a powerful incentive for firms to carefully control product safety, when consumers increasingly care about product quality and accidents are heavily advertised by media.

Courtroom Questioning as a Culturally Situated Persuasive Genre of Talk

Questioning takes on culture-specific forms and has culturespecific functions. The purpose of questioning in Chinese criminal courtrooms is not to obtain information; rather it is to persuade. Five patterns of questioning, invoking Chinese cultural notions of shame and morality, are used to extract confessions and remorse from defendants: (i) repeating key questions, (ii) invalidating excuses or accounts, (iii) asking unanswerable questions, (iv) supplying answers, and (v) paraphrasing or restating defendants’ responses. The persuasive power of the questioning discourse structure and the deterrent function of criminal trials in China are also discussed.

Economic Analysis in a Unified Conception of Tort Law

Author(s): Geistfeld, Mark | Abstract: The controversy regarding the appropriate purpose of tort law continues to rage. Some advocate that tort rules should minimize accident costs as an instrument for maximizing social welfare and wealth. Others argue that as a matter of corrective justice, tort rules should fairly protect the individual right to physical security. These two conceptions of tort law are fundamentally incompatible and mutually exclusive. It would seem, then, that the tort system must choose between efficiency and fairness. This article establishes the possibility of a unified conception of tort liability, one capable of fully accounting for the central tenets of welfare economics and the fair protection of individual rights. The unified conception incorporates economic analysis into a fair theory of tort law. Under this approach, the individual right to physical security constrains the ability of the tort system to promote social welfare. The constraint yields rights-based tort rules that are consistent with the Pareto principle and satisfy the equity-efficiency criterion, the two central tenets of welfare economics. The approach is illustrated by a rights-based conception of fairness that adequately describes the important tort doctrines while unifying the compensation and deterrence functions of tort law. As this example illustrates, the constraint imposed by a rights-based principle does not make welfare considerations irrelevant. It merely defines the conditions under which tort rules can appropriately rely upon welfare considerations. Further analysis shows why any rights-based tort system is likely to provide an important role for economic analysis, one that operates within the constrained space of welfare concerns. The economic inquiry no longer exclusively focuses on the minimization of costs. Freed from such a limited and controversial role, economic analysis becomes integral to a unified conception of tort law.

New Roles for Conserved Regions within a ς54-dependent Enhancer-binding Protein

23 amino acid substitutions were made in the C7 and C3 regions of pspFDeltaHTH, a protein required to convert sigma(54) closed promoter complexes to open complexes. These mutants were assayed for transcriptional competence, for the ability to hydrolyze ATP, for their multimerization state, and for their ability to interact with sigma(54) and its holoenzyme. C7 region mutants caused the protein to assume a compact form. This property could be mimicked by the addition of ATP, implying that compaction via C7 and ATP is part of the activation process. A number of C3 mutants were important for energy coupling, as indicated previously for several members of this activator family (, ). However, a patch within C3 influenced oligomerization. The C3 region was especially important in interacting with sigma(54) during the transition state but not important in inducing sigma(54) holoenzyme to engage the nontemplate strand of the promoter. It is proposed that both regions contain deterrent functions that prevent premature activation. Overall, the results imply unexpected roles for the C7 and C3 regions of this protein family during promoter activation.

Violence in the night‐time economy; bouncers: The reporting, recording and prosecution of assaults1*

This paper, based on ethnographic research, is concerned with the accountability of licensed premise door staff – better known as ‘bouncers’.2 The situational dynamics of the bouncer's enacted environment ensures that theirs is a role consistently exposed to the interactions of violence. As such, allegations of assault, both upon and by door staff, are common. This paper reports upon incidents of door staff violence and why they often fail to be investigated and, when they are investigated, why they frequently fail to be successfully prosecuted at court. In doing so, the paper highlights the adopted attitudes and procedural methods employed by both bouncers and police officers, which have a detrimental impact upon the deterrent function of the criminal law. The paper ends by offering some policy prescriptions to local police managers, suggesting that the state police become more (pro)actively involved in overseeing the provision of this expanding sector of the private security industry.

Hair analysis for driving licence in cocaine and heroin users.: An epidemiological study

Diagnosis of drug exposure is strongly supported by analysis of hair samples. In the province of Brescia, Italy, for regranting driving license to drug addicts or occasional abusers, a control programme was adopted including analysis of illicit drugs in two hair segments (0–3 and 3–6 cm) and in urine. From January 1998 to April 1999, upon request of the Local Medical Commission, 697 hair samples were tested in our laboratory. One hundred and eighty subjects resulted positive in hair for one or two of the controlled drug classes (73.3% for cocaine, 10% for opiates, 16.7% for both). Positive subjects were classified by residence, age, sex and license category. Seventy-two subjects were called back after 6–12 months and submitted to a second hair and urine analysis: in 34 cases the result of the first analysis was confirmed (19 negatives, 15 positives for one or both drug classes). Another 37 cases tested positive at the first control and negative at the second, suggesting the hypothesis that a strict control may have a significant deterrent function. The high percentage of negative results at the second control may be explained by the prevalence of cocaine users in the examined population. Our results allow us to conclude that the strict application of control rules lead to a decrease of social risk behaviours.

The Intensity of Emotion

A theory is outlined that assumes that emotions are motivational states with the special function of producing adaptation to situational conditions. The theory assumes that the emotional system lies in the central nervous system, that it is fast to react, able to change quickly from one emotional state to another, produces only one emotion at a time, and that the intensity of that emotion is a nonmonotonic function of deterrence to the aim of the emotion. Supporting data from several experimental tests are reported, and selected theoretical problems are discussed.