Imposition Of Penalty Research Articles

The Shadow of the Rational Polluter: Rethinking the Role of Rational Actor Models in Environmental Law

Many of the central doctrinal and policy debates in American environmental law rest, fundamentally, on disagreements over a single empirical question: what motivates firms in their interactions with the environmental regulatory system? The traditional view sees firms as polluters - self-interested economic and political actors, whose rational pursuit of their self-interest guides both their compliance decisions and their attempts to influence policy. To induce compliance, then, environmental enforcement must aim to deter violations through the imposition of penalties; likewise, to prevent firms from capturing the regulatory process, regulation must rely on prescriptive rules and must eschew informal or ad hoc policymaking methods. Reformers, on the other hand, challenge the traditional view. They look at that same deterrence- and rule-based environmental regime and see a complex, ossified system that often makes compliance difficult and impractical, and conclude that much noncompliance with environmental regulation is inadvertent. For these reasons, reformers advocate a more cooperative and collaborative, and less adversarial and punitive, regulatory process. The conflict between these two views casts a long shadow over American environmental regulation. This article has three objectives. First, it traces the numerous and sometimes elusive connections between current doctrinal and policy debates in environmental law (debates over civil and criminal enforcement as well as regulatory reform) and their common root, this question of the accuracy and validity of the rational polluter model. Second, it examines the latest thinking and evidence on this question from legal and social science scholarship, and concludes that the traditional view fails to explain the behavior of many regulated firms. Finally, it argues (using evidence from behavioral psychology and elsewhere) that over-reliance on the rational polluter model may pose a long-term risk to the legitimacy of the American regulatory system, particularly if it fails to meet the expectations of the political moderates.

Reliance on professional and non‐professional advisors or staff as a defence to the imposition of penalties in income tax matters

Many taxpayers rely on their advisors to look after their tax affairs. In spite of this reliance, taxpayers still find themselves in default for the purposes of section 76(1) of the Income Tax Act and additional tax (referred to as a “penalty” by the judiciary) is imposed. This article examines whether the reliance by a taxpayer on his advisor, be it his accountant, bookkeeper or even a member of staff, can constitute a complete or partial defence to the imposition of additional tax in terms of section 76(1) or be regarded as an “extenuating circumstance” for the purposes of remission of additional tax in terms of section 76(2)(a).

An Antidumping Law Can Be procompetitive

Home and foreign duopolists collude in the absence of an antidumping (AD) law because competition law makes renegotiation of collusion more costly than imposition of punishment for defection. Introduction of an AD law with a weak injury standard can undermine collusion by providing a low‐cost mechanism for renegotiation. This induces dumping by the foreign firm and defection by the home firm. An AD law can be procompetitive, in contrast to recent literature suggesting that an AD law can facilitate collusion. The law is asymmetric, providing a greater incentive for home‐firm than foreign‐firm deviation.

Les sanctions alternatives et complémentaires aux peines classiques en droit de l'environnement : étude comparative (France et Burkina Faso)

Damage to the environment constitutes a new type of criminality to which conventional criminal penalties are not always well-suited. For this reason, the legal Systems in France and Burkina Faso have developed several alternative and complementary sanctions in addition to conventional penalties. Some of these sanctions are imposed by the judge in criminal law proceedings. Examples of such approaches include positive obligations to undertake certain actions, such as restoration and work in the public interest : these penalties are clearly useful for environmental protection but are not yet widely applied. Other alternative and complementary sanctions are just as useful : measures such as the loss or restriction of certain rights, advertising measures and confiscation are often imposed in order better to adapt criminal sanctions to the environmental field. The administration also has important powers to impose environmental sanctions, not only through mechanisms for seulement or compromise but also by the occasional imposition of penalties in rem on the offender. However, this can raise problems of cumulative penalties which conflicts with the principle of proportionality in penalty-setting.

Legal Penalties and Audit Quality: An Experimental Investigation*

AbstractThe purpose of this paper is to investigate the impact of legal penalties on audit quality under different legal regimes. We investigate whether audit quality is affected differentially due to the complexity inherent in legal regimes and the frequency of imposing legal penalties. Economic theory predicts that players adopt equilibrium strategies that reflect the expectation that a penalty will be incurred, but the actual occurrences of penalties, if consistent with this expectation, should not prompt an individual to modify his or her strategy. However, learning theory suggests that players' choices will be repeated in the future based on outcomes. We found that penalties triggered both increases and decreases in effort, and seemed to introduce a “shock” that increased the variability of effort. We also observed a “funnel” effect — that is. greater changes in effort closer to the imposition of penalties, and smaller changes as more periods go by without a penalty.

Redrawing the Civil-Criminal Boundary

This essay explores the effect of the destabilization of the criminal-civil divide upon constitutionally-required procedural protections. To maintain a system that grants special procedural protections to defendants in criminal proceedings, we must be able to distinguish public criminal actions from private civil ones. This has become unworkable with the increase in hybrid actions, such as state statutes that mandate that exemplary damages in civil tort actions be shared with the government, state and federal statutes that mandate victim restitution as part of a criminal verdict, and state and federal statutes that allow a government plaintiff to use the civil setting to sanction individuals and entities for conduct that is also proscribed by the criminal law. The Court has long struggled with the last example, providing inconsistent opinions both as to whether the imposition of punishment is the feature which marks a given proceeding as criminal for the purpose of procedural protections, and what it means for a given sanction to be punitive. For a brief period between 1989-1994, the Court attempted to draw independent and principled distinctions between punitive and non-punitive sanctions, and appeared willing to impose select criminal procedural protections in otherwise civil proceedings. However, more recently the Court has abandoned this effort. In a series of cases heard during the 1995-1997 terms, the Court has chosen to simply bow to the legislative labeling of an action as criminal or civil, regardless of the sanction imposed. Moreover, the Court has adopted an all-or-nothing approach to proceedings--they are either entirely civil and merit no criminal procedural protections, or they are entirely criminal and merit the full array of criminal procedural protection listed in the Bill of Rights. I predict that these decisions will have the following two effects: (1) an increasing number of formerly punitive sanctions imposed in criminal proceedings will be transformed by legislatures into remedial sanctions appropriate for civil fora, and new statutes will receive the civil appellation as a matter of course; and (2) this will lead to surprising developments in Fourth, Fifth, and Sixth Amendment jurisprudence. Unfortunately, a return to the neat criminal-civil dichotomy of days gone by is both theoretically and practically impossible. I conclude that our best hope of protecting against a slow but steady shrinkage in the scope and content of procedural protections we have come to rely upon when important interests are at stake is to accept compromise procedures in hybrid actions.

Multiple Penalty Mechanisms in a Principal–Agent Model under Different Institutional Arrangements

This paper develops a principal–agent model that involves a multiple penalty mechanism, containing both monetary- and resource-based penalties, and analyzes it in two institutional settings: a market economy and a centrally planned economy. In the latter economy, the agent's wealth dep*ends mostly on real resources and only to a limited degree on monetary resources; therefore, monetary-based penalties have less penalizing power than resource-based penalties. Based on this premise, the model generates testable hypotheses regarding the differences in optimal penalty imposition between the two economic systems.J. Comp. Econom.,March 1999, 27(1), pp. 168–189. University of Kansas, 213 Summerfield Hall, Lawrence, Kansas 66045.

Identity, Difference, and Enlightenment Heritage(s): Comment on “The Right to Be Punished”

Markus Dirk Dubber has provided the readers of the Review with an erudite and fascinating essay that traces a change in modern western penal thought since the Enlightenment. What he presents is a very brave attempt to mount a left critique not only of contemporary vicious trends toward the escalation of retributive criminal penalties, but also of the therapeutic concepts of fundamental difference that have characterized rehabilitationist theories of punishment. In Dubber's view, rehabilitationism wandered from the path prepared by the Enlightenment and thereby invited barbaric reactionaries once again to dominate the field of criminal punishment. While the essay makes an important point about the blindness of rehabilitationists to the need to justify and legitimize the imposition of punishment, and while it brings to the attention of Anglo-American specialists the importance of figures from the German Aufklärung, such as Fichte, Kant, and Hegel, and rehabilitationists, such as Krause and Röder, it leaves the reader wondering about how to transcend the limits of the formalism of Enlightenment abstract identity and how to root the geistesgeschichtlich erudition of the author's idealism in the soil of social history.

A stochastic linear programming approach to hierarchical production planning

This paper examines production planning decisions. The process is formulated as a hierarchical production planning (HPP) model under uncertain demand. A review of HPP articles indicates that while current models do consider uncertainty as a part of their solution methods, a deficiency persists since these models fail to incorporate the uncertain demand explicitly in the formulation of the problem. A stochastic linear programming model (SLP) is proposed to better reflect reality and to provide a superior solution. The model remains computationally tractable despite the precise incorporation of uncertainty and the imposition of penalties when constraints are violated. A problem is introduced which illustrates the superiority of the proposed model over those currently being applied.

The Blunt Instrument

Punishment is an ugly, brutal thing. By definition, punishment involves the deliberate infliction of pain and suffering on another. It is the intentional creation of harm. Though we ordinarily think of punishment as a response to crime, we should be ever mindful of the fact that—by any known society's definition--punishment is crime, unless it is fully justified by some other and higher end. Worse yet, punishment is organized crime, and it is highly open and notorious crime, as it is usually associated with a regularized, state-sponsored public spectacle. For these reasons, it has long been acknowledged that the wanton brutality that is punishment must be strictly and completely justified as serving some worthwhile aim--indeed, that ultimately the infliction of punishment does more good than its obvious and immediate harm, and that both the manner and the degree of punishment is in fact strictly necessary to the achievement of that good. Thus, the structure of the justification for punishment is precisely the same as the justification for the commission of an act that otherwise would be a crime: that the deliberately injurious act is the lesser evil, as its commission is necessary to avoid an even greater harm.

WHAT IS VIGILANTISM?

Despite popular and official concern about an apparent increase in vigilante activity in the United Kingdom, there has been little serious attempt to conceptualize vigilantism. This paper attempts to establish a criminological definition of vigilantism, so providing a starting point for future empirical analysis of the subject. The paper argues that vigilantism has six necessary features: (i) it involves planning and premeditation by those engaging in it; (it) its participants are private citizens whose engagement is voluntary; (iii) it is a form of autonomous citizenship' and, as such, constitutes a social movement; (iv) it uses or threatens the use of force; (v) it arises when an established order is under threat from the transgression, the potential transgression, or the imputed transgression of institutionalized norms; (vi) it aims to control crime or other social infractions by offering assurances (or guarantees') of security both to participants and to others. This approach is distinct from attempts to define vigilantism as mere establishment violence' and neither assumes vigilante engagement to be extra-legal nor to involve the necessary imposition of punishment on victims.

Odstraszające oddziaływanie kary na sprawcę przestępstwa w świetle badań empirycznych

Odstraszające oddziaływanie kary na sprawcę przestępstwa w świetle badań empirycznych

Granice nieletniości w polskim prawie karnym

Granice nieletniości w polskim prawie karnym

Punishment as a factor in preventing alcohol‐related accidents

As a humanitarian and economic 'bad', infliction of punishment requires justification in terms of compensating achievements, as well as moral appropriateness. In the context of road accidents, there is evidence that increasing the certainty and swiftness of threatened punishment may deter risky behavior, although increasing the severity of the threat seems ineffective. These effects may be generalizable to other kinds of accidents, but empirical evidence is lacking. A further possibility for the justifiable use of punishment is in its application to negligent service of alcohol.

Mandatory Penalties

To many public officials, promotion and enactment of mandatory penalty laws are important symbols of their concern for public safety and citizens' fear of crime. In practice, mandatory minimum-penalty laws accomplish few of their stated objectives and produce unwanted consequences. Their deterrent effects range from nonexistent to short-lived. When they call for short mandatory prison terms for serious crimes, they are often irrelevant because longer sentences are generally imposed. When they mandate longer terms (five, ten, twenty years), they are often circumvented by lawyers and judges. They reduce defendants' incentives to plead guilty, reduce guilty plea rates, and lengthen case processing time. They sometimes result in imposition of penalties more severe than anyone immediately involved believes appropriate. A number of devices exist, ranging from repeal to reconfiguration, for avoiding the unwanted effects of mandatory penalties. Whether such devices can adequately reconcile public officials' needs to take symbolic actions with court officials' needs to be both just and efficient remains to be seen.

Syndications in sovereign lending

The paper develops a gmae theoretic model of lender/sovereign borrower relationships. Conditions that determine a self-enforced equilibrium in loan contracts are derived. The model is extended to explain syndicated lending under different regimes of cost and penalty structures. For example, it is shown that for certian atypes of penalty functions, when the marginal penalty imposition capability of a ‘low penalty type’ lender at smaller loan levels is greater than the marginal penalty impositon of a ‘high penalty type’ lender at higher loan levels, there will be an incentive for banks to lend as a syndicate, with particular types of interbank clauses. Implications of the model, in terms of responsibilities of syndicate members as understood in the legal literature, are also discussed.

The Disciplinary Experiences of Mentally Disordered Inmates

Inmates who can be characterized as disturbed-disruptive present difficult problems for both custodial and mental health staff. This study compares the disciplinary experiences of inmates referred to mental health units at two prisons to those of nonreferred inmates. It is found that referred inmates have higher infraction rates and that they are more likely to engage in rule violations that reflect symptomatic behavior. It is also observed that disciplinary dispositions for referred inmates occasionally invoke the assistance of mental health staff, and that these actions are often combined with the imposition of punishment. In addition, the data suggest that under some conditions punitive responses to infractions by emotionally disturbed inmates may lead to an escalation of disruptive behavior. These findings indicate that within prison settings pathology and disruptiveness are interrelated. They also suggest that disciplinary committees operate primarily under a legalistic model, which incorporates some elements of a flexible rules approach.

The infliction of punishment: A deterrent or hydra?

This paper is meant to analyze some of the consistently controversial issues surrounding the question of punishment, and more importantly, the decision as to whether the threat of certain punishment may deter future would be violators. Philosophical, legal, and societal justifications for reparation are discussed with emphasis on a need for reexamining the current policies in our criminal justice system in its criteria for determining whether or not to impose punishment.

Inside Justice: A Comparative Analysis of Practices and Procedures for the Determination of Offenses against Discipline in Prisons of Britain and the United States

Comparisons of prison in the United States and Great Britain are used to formulate central issues that relate to the adjudication of offenses committed within prisons and the imposition of punishments for them.

Deroche and Cornet v. Société Promatex-France

233International organization and administration — European Economic Community — E.E.C. Treaty (Articles 30, 31 and 177) — Interpretation of — Measures having equivalent effect to quantitative restrictions on import of goods in free circulation — Whether including requirement of import licences issued automatically — Whether including imposition of penalties for failure to comply — Domestic courts of Member States from whose decisions there is no possibility of appeal under domestic law — Duty to refer matters concerning interpretation of E.E.C. Treaty to Court of Justice of European Communities for preliminary ruling — Whether required when meaning of Treaty clear — Whether required when Court of Justice has given interpretation in analogous case — The law of France