(Non)Regulable Avoidance and the Perils of Punishment
Bar-Ilan University - Faculty of Law
Avraham D. Tabbach
Tel Aviv University
April 1, 2007
Bar Ilan University, Public Law and Legal Theory Working Paper No. 07-05
European Journal of Law and Economics, Forthcoming
Efforts to avoid punishment are generally deemed undesirable and therefore punished or otherwise regulated. In reality, however, not all avoidance efforts are punishable or regulable, at least not to the same degree. For practical or sometimes constitutional reasons, certain efforts to avoid punishment, such as non-creation of incrementing evidence or zealous criminal litigation, are non-punishable. This paper examines whether and under what conditions it is wise to deter avoidance efforts in a setting with multiple avoidance activities, some of which are non-regulable/punishable. The main results of this paper are that deterring certain avoidance activities does not necessarily: (i) decrease the extent to which offenders engage in avoidance activities; and (ii) more importantly, improve deterrence of the principal crimes. Normatively, then, it might be better to let certain punishable avoidance activities go unpunished or, more surprisingly, even to subsidize them. This calls into question recent responses by lawmakers after evidentiary fouls, such as those at Enron, WorldCom and HealthSouth, to stiffen penalties for obstruction of justice.
Number of Pages in PDF File: 31
Keywords: avoidance, crime, deterrence, enforcement
JEL Classification: K14, K42Accepted Paper Series
Date posted: April 12, 2007 ; Last revised: December 1, 2008
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