81 Pages Posted: 23 Nov 2002
Over one-quarter of all federal criminal prosecutions and a large number of state cases involve prosecutions for conspiracy. Yet, the major scholarly articles and the bulk of prominent jurists have roundly condemned the doctrine. This Article offers a functional justification for the legal prohibition against conspiracy, centering on psychological and economic accounts. Advances in psychology over the past thirty years have demonstrated that groups cultivate a special social identity. This identity often encourages risky behavior, leads individuals to behave against their self-interest, solidifies loyalty, and facilitates harm against non-members. So, too, economists have developed sophisticated explanations for why firms promote efficiency, leading to new theories in corporate law. These insights can be "reverse-engineered" to make conspiracies operate less efficiently. In reverse-engineering corporate-law principles and introducing lessons from psychology, a rich account of how government should approach conspiracy begins to unfold.
In particular, law enforcement strives to prevent conspiracies from forming by imposing high up-front penalties for joiners but uses mechanisms to harvest information from those who have joined and decide to cooperate with the government. Traditional conspiracy doctrines such as Pinkerton liability and the exclusion from merger not only further cooperation agreements, they also make conspiracies more difficult to create and maintain by forcing them to adopt bundles of inefficient practices. The possibility of defection forces the syndicate to use expensive monitoring of its employees for evidence of possible collusion with the government. Mechanisms for defection also break down trust within the group and prime members to think that others are acting out of self-interest. The Article concludes by offering a variety of refinements to conspiracy law that will help destabilize trust within the conspiracy, cue the defection of conspirators, and permit law enforcement to extract more information from them.
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