Margaret H. Lemos
Duke University School of Law
Yeshiva University - Benjamin N. Cardozo School of Law
July 21, 2010
Minnesota Law Review, Vol. 95, 2011
Cardozo Legal Studies Research Paper No. 305
Doctrine and scholarship recognize two basic models of enforcing the law: the comprehensive model, under which law-enforcers try to apprehend and punish every violator within the bounds of feasibility; and the randomized model, under which law enforcers economize their efforts by apprehending a small number of violators and heightening their penalties so as to make violations unattractive. This Article supplements this list of options by developing a strategic model of law enforcement. Under this model, law enforcers concentrate their effort on the worst, or most rampant, violators at a given point in time while leaving all others unpunished. This enforcement strategy will force violators into a cascaded retreat: to avoid detection as one of the worst violators, every individual wrongdoer will bring the level of his unlawful activity down to the point of inconspicuousness - a process that will repeat itself several times to society’s benefit. This Article identifies the circumstances that call for the strategic model’s adoption and illustrates the model’s potential as an enforcement tool in diverse areas of the law that include employment discrimination, election districting, and copyright protection.
Number of Pages in PDF File: 38
Keywords: Enforcement, Fines, Penalties, Violators, Compliance, Damages, Safe Harbor, Comprehensive Enforcement, Randomized EnforcementAccepted Paper Series
Date posted: July 22, 2010 ; Last revised: September 14, 2010
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