General Deterrence and Corporate Environmental Behavior*

This research addresses the assumption that “general deterrence” is an important key to enhanced compliance with regulatory laws. Through a survey of 233 firms in several industries in the United States, we sought to answer the following questions: (1) When severe legal penalties are imposed against a violator of environmental laws, do other companies in the same industry actually learn about such “signal cases”? (2) Does knowing about “signal cases” change firms’ compliance‐related behavior? It was found that only 42 percent of respondents could identify the “signal case,” but 89 percent could identify some enforcement actions against other firms, and 63 percent of firms reported having taken some compliance‐related actions in response to learning about such cases. Overall, it is concluded that because most firms are in compliance already (for a variety of other reasons), this form of “explicit general deterrence” knowledge usually serves not to enhance the perceived threat of legal punishment, but as reassurance that compliance is not foolish and as a reminder to check on the reliability of existing compliance routines.     

Competing Normative Frameworks and the Limits of Deterrence Theory: Comments on Baker and Griffith's Ensuring Corporate Misconduct

This essay reviews the contributions to deterrence theory that Tom Baker and Sean Griffith make in Ensuring Corporate Misconduct (2010) and argues that their work highlights the limits of deterrence theory for shaping corporate conduct. Baker and Griffith extend the deterrence framework to account for the mediating effect of third‐party institutions, like insurers, on deterrence calculations, and they suggest how corporate governance decisions, such as what type of insurance coverage to purchase, encode signals about corporations' compliance motivations and capacity. Although these insights might prove useful for enhancing the efficacy of deterrence regimes aimed at white‐collar crime and other types of corporate misconduct, they suggest the difficulty of shaping corporate conduct that is influenced not only by the norms embodied in securities law, but also by the alternative normative system of shareholder value maximization. I discuss the failure of deterrence theory to address adequately noncompliant behavior that springs not solely from material self‐interest, but from adherence to an alternative set of norms, and I explore the possibility of viewing corporate compliance as a norm‐change project.     

TOWARD A MACRO-SOCIOLOGICAL INTERPRETATION OF GENERAL DETERRENCE

This paper is focused on the problem of general deterrence as a macro-sociological phenomenon. An attempt has been made to integrate existing literature into a set of testable hypotheses Three perspectives on general deterrence are examined, including the classical school of criminology and the positions of Durkheim and Sumner. The variables of certainty and seventy, type of threatened behavior, latent deterrent functions of legal threats, and normative structure are discussed. It is suggested that compliance rates may be used as an empirical index of general deterrence.     

Prevalence and Correlates of Intimate Partner Violence Among a Sample of Construction Industry Workers

This study assessed the prevalence and correlates of intimate partner violence (IPV) among a sample of unionized construction industry workers, and tested the reliability of new measures of IPV normative beliefs. Study participants (n=100) voluntarily completed confidential and anonymous self-administered questionnaires that measured occupational factors, hazardous drinking, and normative beliefs. Measurement of past-year IPV was based on the Conflict Tactics Scale, Form R. Measures of IPV normative beliefs showed good reliability (Cronbach’s α 0.94–0.95). Past-year IPV prevalence was 26%. Logistic regression models were developed to assess the contribution of each factor to risk of past-year IPV perpetration. Perceived workplace racial/ethnic discrimination, job strain, interpersonal workplace conflict, normative beliefs, and hazardous drinking were positively associated with elevated IPV risk.Construction industry workers may have higher rates of IPV compared to general population samples that represent various occupations and social classes. Occupational factors appear to be significant correlates of IPV among these workers.     

Weak Enforcement,Strong Deterrence: Dialogues with Chinese Lawyers About Tax Evasion and Compliance

This article analyzes why Chinese lawyers report a high level of perceived deterrence in relation to tax evasion even though enforcement is weak. It finds that deterrence here originates from multiple sources, most directly through clients and more distantly through the firm and the state. Lawyers have highly contextual notions of detection probability and a vague understanding of sanction severity unfitting of the high deterrence found here. In the cases studied, deterrence arises out of a general fear lawyers have of state authorities and clients, as well as through personal morals and social norms in their firms. This shows a broader and deeper approach to deterrence, beyond certainty and severity of punishment for the violation studied, one in which the general perceived risk of such violation is central, whatever its source.     

Dixit versus Williamson: the ‘fundamental transformation’ reconsidered

Comparing the literature on hold-up and strategic entry deterrence leads to a puzzling role for sunk or specific investments in affecting investor’s incentive. In one case, non-redeployable investments decrease investor’s ex-post bargaining power. In the other they increase it. When the entry deterrence effect is acknowledged, the threat of hold-up against investor is largely weakened. Contrary to previous literature, in this respect, asset specificity may even constitute an endogenous enforcement device for incomplete contracts. We conclude that the impact of asset specificity on investor’s post-contractual power, far from being general, depends on the nature of interactions between contractual arrangements and market structure.     

Analyzing the Equity and Efficiency of OSHA Enforcement

Our study evaluates the equity and efficiency of OSHA enforcement relating to the nature of the firm, the intensity of the inspection, and the size of penalty, based on the experience of 6,842 firms between 1979 and 1985. We found that: (1) enforcement actions against firms with one hundred to five hundred employees had greater general and specific deterrence effects than against larger or smaller firms; (2) superficial inspections that checked only the firm's injury records were ineffective. Health inspections, which tend to be more intense, also reduced injuries, but repeated inspections in the same year did not; and (3) larger penalties did not increase either general or specific deterrence. Small penalties decreased injuries as much as larger ones, and took considerably less inspection time. We discuss implications for policy, and emphasize the need for further research on the equity and efficiency of enforcement.     

When Social Norms and Pressures Are Not Enough: Environmental Performance in the Trucking Industry

Why do some business firms and not others work hard to advance regulatory values such as environmental protection and comply with regulations? Previous research indicates that business firms are influenced in that regard by a number of variables—not merely the perceived likelihood of legal punishment but also the risk of negative reactions by societal actors (which we call “social license pressures”) and the intensity of managers' commitment to norms of law‐abidingness and environmentalism. This article reports on a study of control of diesel emissions in the trucking industry, a highly competitive market with many small firms, mobile pollution sources, expensive “best control technologies,” and weak regulatory demands. In contrast to findings in studies of large firms, we found that social license pressures on small trucking firms are minimal. Trucking companies' environmental performance—good and bad—flows from managers' economic choices, which are influenced by their particular market niche. In such highly competitive, small‐firm market contexts, these findings imply, significant improvement in environmental performance is not likely without strong direct regulatory pressures.     

Police Officers’ Theories of Crime

What factors do police officers point to in explaining offending and victimization? A limited amount of prior research has addressed this question, despite the possibility that such theories impact police practice. Moreover, the findings that do exist are based solely on municipal police; yet a different socio-environmental context could lead officers to adopt different explanations. In the present paper, we draw on qualitative data obtained in interviews with campus police officers to explore how they explain common crimes on campus. They theorized petty larceny, underage drinking, and drug possession to result from a variety of factors, including opportunity, social learning, supervision, culture, peer pressure, the psychopharmacological effect of alcohol on crime, and deterrence; as a collective, these ideas form officers’ rational choice theories. After presenting our findings, we suggest how officers’ explanations of crime may be shaped by working in particular contexts and also affect how they police; implications for future research and police practice are discussed.     

Beyond Rational Choice: the Hot/Cool Perspective of Criminal Decision Making

This paper proposes a general framework of criminal decision making that assumes both ‘cool’ cognition and ‘hot’ affect, i.e. feelings, to influence criminal choice. Drawing from judgment and decision making research and social psychology, the hot/cool perspective extends rational choice and deterrence theories by explaining how affect is likely to influence criminal decisions alongside cognitive considerations, such as the perceived costs and benefits of crime. It is shown how the hot/cool perspective offers a more realistic account of criminal decision making processes than existing decision models and approaches and also allows for the explanation of criminal behaviors that are difficult to explain in terms of rational choice.     

DETERRING CORPORATE CRIME*

Using event history analysis, we examine the recidivism patterns of a sample of 38 corporations charged with one or more serious antitrust violations between 1928 and 1981 to see whether sanction experience decreases the likelihood of a firm's reoffending. Specifically, we analyze the effects of procedure type (e.g., civil, criminal, and administrative redress) and proxy measures of corporate deterrence while controlling for changes in antitrust law and the economic conditions of the firm, industry, and general economy. Though not robust, there is some evidence that past guilty verdicts and changes in penalties for lawbreaking from misdemeanors to felonies inhibit recidivism. We note, however, that industry characteristics are stronger by far in their effects on future illegality than formal sanction risk or consequence. The implications of these findings for organizational deterrence and corporate crime control are discussed.     

Trust,Distrust and Reassurance: Diversion and Preventive Orders Through the Prism of Feindstrafrecht

This article considers Günther Jakobs' controversial theory of ‘the criminal law of the enemy’ (Feindstrafrecht). Taking an interpretive perspective that is anchored in social theory, rather than normative principles, the article traces the implications of Jakobs' central claims concerning trust relations in society as mediated by the criminal law and endeavours to articulate their relevance for English law, particularly as regards the growing role of diversion and preventive orders in criminal justice. It identifies the various ways in which these current alternatives to the criminal sanctioning process link with neo‐liberal technologies of government by connecting Jakobs' thoughts on trust with key themes in the Foucauldian governmentality literature and recent research on the ascent of auditing as a meta‐regulatory mechanism.     

Democratic Legitimacy in the Bund or ‘Federation of States’: the Cases of Belgium and the EU

Carl Schmitt developed the concept of the ‘federation of states’ (Bund) in order to characterise intermediate constitutional systems which are integrated beyond the level of a confederation (Staatenbund) without, however, acquiring the level of integration of an actual federal state (Bundesstaat). In this paper we analyse the constitutional specificity of the ‘federation of states’ and present three normative principles for assessing the democratic legitimacy of the decision‐making procedures within such a federation. We argue that both the European Union and Belgium can be analysed as instances of such a federation of states and show how this characterisation improves our understanding of the evolutionary dynamics of both polities and the constitutional and democratic challenges they are facing.     

On the Necessity of the Interconnection between Law and Morality*

Abstract. By taking issue with Robert Alexy's claim to correctness, I attempt to cast light on the nature of the necessity that pertains to the claim. With respect to it, I argue that it should be understood as deriving from the metaphysical requirements for normative knowledge in general. These requirements are shown to include a general norm of autonomy which is a priori and necessary, and comprises a minimal morality. The line of reasoning is compatible with discourse theory, but does not presuppose it; therefore more far‐reaching conclusions can be drawn.     

The Evolutionary Game‐Theoretic Foundations of Law

Interdisciplinary work in the law often starts and stops with the social sciences. To produce a complete understanding of how law, evolutionary game‐theoretic insights must, however, supplement these more standard social scientific methods. To illustrate, this article critically examines The Force of Law by Frederick Schauer and The Expressive Powers of Law by Richard McAdams. Combining the methods of analytic jurisprudence and social psychology, Schauer clarifies the need for a philosophically respectable and empirically well‐grounded account of the ubiquity of legal sanctions. Drawing primarily on economic and social psychological paradigms, McAdams highlights law's potential to alter human behavior through expressions that coordinate. Still, these contributions generate further puzzles about how law works, which can be addressed using evolutionary game‐theoretic resources. Drawing on these resources, this article argues that legal sanctions are ubiquitous to law not only because they can motivate legal compliance, as Schauer suggests, but also because they provide the general evolutionary stability conditions for intrinsic legal motivation. In reaction to McAdams, this article argues that law's expressive powers can function to coordinate human behavior only because humans are naturally and culturally evolved to share a prior background agreement in forms of life. Evolutionary game‐theoretic resources can thus be used to develop a unified framework from within which to understand some of the complex interrelationships between legal sanctions, intrinsic legal motivation, and law's coordinating power. Going forward, interdisciplinary studies of how law works should include greater syntheses of contemporary insights from evolutionary game theory.     

The role of firm and national level factors in fostering R&D cooperation: a cross country comparison

This paper explores the factors that affect firms’ propensity to engage in R&D cooperation using a CIS-3 sample of innovative firms located in seven European countries. It performs the analysis separately for the manufacturing and the service sectors in order to examine whether there are specific features that shape the service firms’ R&D cooperative behaviour in particular ways. Differences between the manufacturing and the service sectors in the cooperative behaviour of firms become much more evident once an appropriate structure of endogeneity is determined. We compare different countries because, so far, the empirical evidence produced comes from single countries or countries that are all quite homogeneous in terms of industrial structure. Instead, we consider also countries, such as transition economies, that have not been analyzed so far. We find that public subsidies positively affect firms’ propensity to engage in R&D cooperation in all countries, but they seem particularly important to enhance firms’ cooperativeness in the service sector. Implications for innovation policy are examined.     

Membership and its Privileges: the WTO, Civil Society, and the Amicus Brief Controversy

Abstract: In a series of rulings, beginning with the notorious Shrimp/Turtle dispute, the high court of the WTO, the so‐called Appellate Body, has ruled that it, as well as the panels of first instance, may, on a discretionary basis, accept and consider amicus curiae briefs from, inter alia, non‐governmental organisations and private individuals. This has been highly controversial and subject to wide and intense criticism by trade diplomats who are the political representatives of WTO Member states in Geneva; the officials have reacted with anger and hostility to the notion that governments are not exclusive gatekeepers of access to the WTO dispute settlement tribunals. This article shows that the decision that amicus briefs are admissible at the discretion of the adjudicator has a sound basis in the legal framework for WTO dispute settlement, as well as conforming to trends in the practice of international courts and tribunals more generally. The article examines various ‘due process’ issues concerning the modalities for acceptance and consideration of amicus briefs and how they have been so far dealt with by the Appellate Body, as well as how they are handled in certain proposals for reform of the legal framework of WTO dispute settlement, the Dispute Settlement Understanding (DSU).     

Understanding Transnational Policy Flows in Security and Justice

This article examines the contribution of scholarly work on ‘policy transfer’ and related concepts to our knowledge of how far, and in what ways, particular policy ‘models’ of security and justice travel across national boundaries, and what might explain this phenomenon. The article begins by summarizing the key findings of extant empirical studies of cross‐national policy movement in the fields of crime, security, and justice. It then considers the normative dimension to debates about policy transfer, observing that much of the literature adopts a pessimistic position about the problematic nature of international policy movement in security and justice, and discusses some of the reasons for such pessimism. The article then reflects on ways in which normative principles could be applied to considerations of prospective policy transfer, and the implications for the broader possibilities for ‘progressive’ policy transfer in relation to crime, security, and justice.