The "Compliance" Trap: The Moral Message in Responsive Regulatory Enforcement

Simple deterrence will often fail to produce compliance commitment because it does not directly address business perceptions of the morality of regulated behavior. Responsive regulation, by contrast, seeks to build moral commitment to compliance with the law. This article shows that a regulator can overcome the deterrence trap to improve compliance commitment with the skillful use of responsive regulatory techniques that "leverage" the deterrence impact of its enforcement strategies with moral judgments. But this leads it into the "compliance trap." The compliance trap occurs where there is a lack of political support for the moral seriousness of the law it must enforce, such as is the case with cartel enforcement in Australia. In these circumstances, business offenders are likely to interpret the moral leveraging of responsive regulation as unfair or stigmatizing, and business perceptions of regulator unfairness are likely to have a negative influence on long-term compliance with the law. Moreover, big businesses that perceive regulatory enforcement as illegitimate are also likely to actively lobby for the political emasculation of the regulator. In these circumstances, most regulators are likely to avoid conflict by taking the easy option of enforcing the law "softly," and therefore ineffectively.     

The Future of Incidental Findings: Should They be Viewed as Benefits?

This paper argues against considering incidental fndings (IFs) as potential benefts of research when assessing the social value of proposed research, determining the appropriateness of a study's risk/beneft ratio, and identifying and disclosing the risks and benefts of participation during informed consent. The possibility of generating IFs should be disclosed during informed consent as neither a risk nor beneft, but as a possible outcome collateral to participation. Whether specifc IFs will be disclosed when identifed is a separate question whose answer is material to determining whether IFs constitute a risk or a potential indirect beneft of participation. Finally, three types of IF should be distinguished and treated diferently during informed consent: those that will be routinely generated (e.g., results of testing to determine study eligibility), those that can reasonably be characterized in terms of their nature and frequency of generation (e.g., misattributed parentage), and those of unpredictable nature and frequency that can be characterized only in general terms. Research protocols should provide a rationale for sharing or not sharing IFs of these three types with participants. Regulatory review of such plans should not, however, be confused with regarding IFs as potential benefts when assessing the study's risk/beneft ratio or merit.     

Assessing legal change: Recidivism and administrative per se laws

Tougher sanctions for drunk driving have often been advocated as a means to reduce this problematic behavior. In a test of administrative per se laws as a specific deterrent, the impact of introducing such laws is evaluated by examining reconviction rates of offenders before and after implementation of the Jaw in three states (North Dakota, Louisiana, and Mississippi), with comparisons made to a fourth state during the same time period that did not implement an administrative per se law (California). Recidivism is analyzed using survival models. The results indicate that administrative per se laws reduce rates of reconviction in some situations but not in others. In particular, if implementation of the law is accompanied by changes in overall rates of license actions, the specific deterrent effects of the law may be outweighed by the increased efficiencies of this judicial process.     

Fighting the Siren's Song: The Problem of Amnesty in Historical and Contemporary Perspective

As much of the world gears itself terror, uncomfortable questions may soon nee to be asked. What is to be done with terrorists who are often more popularin their countries that those countries leaders? Can these states afford retribution snd punishment, event at the risk of provoking forces that may lead to further bloodshed and violence? Or, alternatively, should they seek reconciliation and grant offenders amnesty? Or, is the proper solution somewhere in between? It may be comforting to know that these questions are not new, and by examiningthe historical and contemporary debate between the proponents of punishment and those of amnesty, we will be in a better position to make an informed decision when our turninevitably comes to choose. We should pay particulary attention to: what amnesty is, including the problems inherent in its definition; amnesty"s roots in the virtue of foreginess, which is found in most of world"s major religious traditions; amnesty"s historical manifetations in cultures that have adhered to those traditions; the three types of amnesty (moral, just and political) and the historical shift toward exclusively political justifications for amnesty; and classical and contemporary criticsims of and justifications for institutionalized forgiveness, including amnesty. Understanding these issues will not tel us whether it is better toamnesty or not to amnesty, but it will make us equipped to answer that question for ourselves.     

The legal role of medical professionals in decisions to withhold or withdraw life-sustaining treatment: part 1 (New South Wales)

This is the first article in a series of three that examines the legal role of medical professionals in decisions to withhold or withdraw life-sustaining treatment from adults who lack capacity. This article considers the position in New South Wales. A review of the law in this State reveals that medical professionals play significant legal roles in these decisions. However, the law is problematic in a number of respects and this is likely to impede medical professionals' legal knowledge in this area. The article examines the level of training medical professionals receive on issues such as advance directives and substitute decision-making, and the available empirical evidence as to the state of medical professionals' knowledge of the law at the end of life. It concludes that there are gaps in legal knowledge and that law reform is needed in New South Wales.