NewYorkUniversity
LawReview
Current Issue

Volume 81, Number 4

October 2004
Articles

Detection Avoidance

Chris William Sanchirico

In practice, the problem of law enforcement is half a matter of what the government does to catch violators and half a matter of what violators do to avoid getting caught. In the theory of law enforcement, however, although the state’s efforts at “detection” play a decisive role, offenders’ efforts at “detection avoidance” are largely ignored. Always problematic, this imbalance has become critical in recent years as episodes of corporate misconduct spur new interest in punishing process crimes like obstruction of justice and perjury. This Article adds detection avoidance to the existing theoretical frame with an eye toward informing the current policy debate. The exercise leads to several conclusions. First, despite recent efforts to strengthen laws governing obstruction and perjury, sanctioning is relatively inefficacious at discouraging detection avoidance. Sanctions send a mixed message to the offender: Do less to avoid detection, but to the extent you still do something, do more to avoid detection of your detection avoidance. The Article argues that detection avoidance is often more effectively deterred through the structural design of evidentiary procedure (inclusive of investigation). Specifically advocated are devices that exploit the cognitive psychological shortcomings of individuals and the sociological fragility of their collusive arrangements.

A Contractarian Argument Against the Death Penalty

Claire Finkelstein

Opponents of the death penalty typically base their opposition on contingent features of its administration, arguing that the death penalty is applied discriminatorily, that the innocent are sometimes executed, or that there is insufficient evidence of the death penalty’s deterrent efficacy. Implicit in these arguments is the suggestion that if these contingencies did not obtain, serious moral objections to the death penalty would be misplaced. In this Article, Professor Finkelsteindeterrence and retributivismis capable of justifying the death penalty. More generally, she suggests that while each theory captures an important part of the justification for punishment, each must appeal to some further limiting principle to accommodate common intuitions about appropriate punishments for crimes. Professor Finkelstein claims that contractarianism supplies this additional principle, by requiring that individuals consent to the system of punishment under whose threat they must live. Moreover, on the version of contractarianism for which she argues, they must do so based on a belief that they will benefit under the terms of that system as compared with how they would fare in its absence. While the notion of benefit is often best understood in terms of maximizing one’s expected utility, Professor Finkelsteingambling” decision rule. She then argues that rational contractors applying this conception of benefit would reject any system of punishment that includes the death penalty. For while contractors would recognize the death penalty’s deterrent value, they must also consider the high cost they would pay in the event they end up subject to such a penalty. This Article presents both a significant new approach to the death penalty and a general theory of punishment, one that incorporates the central intuitions about deterrence and desert that have made competing theories of punishment seem compelling.

Book Notes

Evolving Strategies for Twenty-First Century Natural Resource Problems

William J. Wailand

East Central Florida sits atop the Floridan Aquifer, an underground water source covering 100,000 square miles and spanning Alabama, South Carolina, Georgia, and Florida (Berardo, pp. 64-65). As the population soars in this region, demand for water will likely increase dramatically, and average water consumption may reach 926 million gallons per day by the year 2020, a sixty percent increase from 1995 levels (Berardo, pp. 64-65). Increasing withdrawals have led to unsustainable levels of use and threaten environmental degradations—saltwater intrusion, reduced spring flows, drying lakes and wetlands—and political conflict (Berardo, p. 65). The principal governmental body in charge of water consumption has designated the area a Priority Water Resource Caution Area, but it is unable to unilaterally solve this impending problem for several reasons. First, the potential causes and impacts of unsustainable use extend beyond its jurisdiction. Second, the diverse array of stakeholders will be reluctant to accept a top-down, dictated solution concerning the sensitive issue of water resources. Third, scientists do not completely understand the potential impacts on the aquifer, and changing scientific understanding may alter potential solutions. How can this natural resource problem be addressed, when the solutions—and even the problems—are poorly understood, and no single administrative body is competent to develop and implement solutions?

Conversation, Representation, and Allocation: Justice Breyer’s Active Liberty

Michael A. Livermore, D. Theodore Rave

There seems to be a public perception that the members of the current, often divided, Supreme Court vote for partisan rather than principled reasons. As recent confirmation hearings have become more heated and polarized, this belief has only crystallized. In Active Liberty: Interpreting Our Democratic Constitution, Justice Stephen Breyer challenges this perception through a thoughtful discussion of the constitutional commitments that inform his decisions. This book does not provide a comprehensive theory of constitutional and statutory interpretation; rather, Active Liberty is important because in it, Justice Breyer gives the American public insight into the constitutional themes and values that he draws on when deciding cases. In particular, Justice Breyer focuses on one constitutional value that he believes has been underappreciated: a commitment to democratic participation and self-government which he calls “active liberty.” Although Justice Breyer recognizes that other constitutional values are important, he believes that active liberty should play a more prominent role in constitutional adjudication.

Lectures

Judging Under the Constitution: Dicta About Dicta

Pierre N. Leval

Madison Lecture

In the New York University School of Law’s annual James Madison Lecture, Judge Pierre N. Leval discusses the increasing failure of courts to distinguish between dictum and holding. Although not opposed to the use of dictum to clarify complicated subject matter and provide guidance to future courts, Judge Levalconsidered precedent. Judge Leval further argues that the Supreme Court’s new command in Saucier v. Katz that, before dismissing a constitutional tort suit by reason of good faith immunity, a court must first declare in dictum whether the alleged conduct violates the Constitution, is particularly ill-advised.

Notes

Binding Corporations to Human Rights Norms Through Public Law Settlement

Benjamin C. Fishman

Recent settlements in the United States and France of human rights litigations against oil companies Unocal and Total have made it clear that litigation is a viable tool for holding companies to account for their involvement in human rights abuses abroad. This Note argues, however, that the Unocal and Total settlements inadequately reflect the public importance of the cases, which sought to force Unocalnamely, the prospective intervention in ongoing situations of injustice and the articulation of public norms. Instead, by channeling much of the settlement funds into community development projects unrelated to the human rights abuses, and by failing to demand any fundamental changes in the defendant companies’ conduct, the settlements replicate a pernicious element of contemporary “corporate social responsibility” efforts: the characterization of good corporate behavior as a matter of charity rather than as a matter of right.

This Note argues that future settlements of human rights cases against corporations can—perhaps more effectively than fully litigated cases—better reflect the promise of public law litigation by setting up legally binding systems to monitor corporate conduct. Such systems could effectively prevent the type of human rights-threatening behavior transnational corporations are most likely to commit. Furthermore, such monitoring systems would be norm-producing, insofar as they would continually elucidate how corporations threaten human rights, and would generate an evolving repertoire of ways to address such threats. In so doing, monitoring systems could serve as bases for NGOs’ international human rights campaigns and as models for replication outside of the litigation context, thus further disseminating norms of appropriate corporate conduct.

Beyond Tanner: An Alternative Framework for Postverdict Juror Testimony

Benjamin T. Huebner

Almost twenty years ago, the Supreme Court’s decision in Tanner v. United States established that under Federal Rule of Evidence 606(b) juror intoxication was an “internal” influence to which jurors were incompetent to testify. Since that decision, many states have discarded their diverse approaches regarding the admissibility of juror testimony on juror misconduct in favor of Tanner’s external/internal framework.

This Note demonstrates why the policy considerations justifying restrictions on juror testimony are not well served by Tanner’s external/internal framework. The Note offers states an alternative approach to the issue of juror misconduct which would better protect both jurors and litigants.

Making the Brand: Using Brand Management To Encourage Market Acceptance of Forestry Certification

Misty L. Archambault

Forestry certification seeks to lessen the environmental impacts of private forestry management practices by providing information to consumers. Certified producers attach a uniform label to their wood products to assure buyers that the products were produced in a sustainable manner. In the United States, forestry certification has existed for more than a decade, yet industry participation in such programs remains low. This Note argues that low industry participation results from a lack of consumer demand for certified forestry products and the failure of certification stakeholders to address this lack of demand. While there are many obstacles to increasing consumer demand, this Note suggests that brand management concepts taken from the field of marketing can help tackle these challenges and, in turn, help increase market acceptance of forestry certification in the United States.