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Detection Avoidance

69 Pages Posted: 15 Aug 2005 Last revised: 5 Jun 2009

Chris William Sanchirico

University of Pennsylvania Law School; University of Pennsylvania Wharton School - Business Economics and Public Policy Department

Date Written: 2006

Abstract

In practice, the problem of law enforcement is half a matter of what the government does to catch violators and half a matter of what violators do to avoid getting caught. In the theory of law enforcement, however, although the state's efforts at detection play a decisive role, offenders' efforts at detection avoidance are largely ignored. Always problematic, this imbalance has become critical in recent years as episodes of corporate misconduct spur new interest in punishing process crimes like obstruction of justice and perjury. This article adds detection avoidance to the existing theoretical frame with an eye toward informing the current policy debate. The exercise leads to several conclusions. First, despite recent efforts to strengthen laws governing obstruction and perjury, sanctioning is relatively inefficacious at discouraging detection avoidance. Sanctions send a mixed message to the offender: do less to avoid detection, but to the extent you still do something, do more to avoid detection of your detection avoidance. The article argues that detection avoidance is more effectively deterred through the structural design of evidentiary procedure (inclusive of investigation). Specifically advocated are devices that exploit the cognitive shortcomings of potential avoiders and the strategic instability of their cooperative arrangements, thereby lowering the cost effectiveness of devoting resources to avoiding detection.

Keywords: Evidence, Procedure, Criminal Law, Administrative Law, Public Enforcement, Obstruction of Justice, Perjury, Discovery Sanctions, Spoliation, Document Retention Policies, Document Destruction

JEL Classification: K42, K41, K32, K2, K14

Suggested Citation

Sanchirico, Chris William, Detection Avoidance (2006). New York University Law Review, Vol. 81, Pg. 1331, 2006; U of Penn, Inst for Law & Econ Research Paper No. 05-18; NYU, Law and Economics Research Paper No. 05-18. Available at SSRN: https://ssrn.com/abstract=782305 or http://dx.doi.org/10.2139/ssrn.782305

Chris William Sanchirico (Contact Author)

University of Pennsylvania Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States
215-898-4220 (Phone)

HOME PAGE: http://www.law.upenn.edu/faculty/csanchir/

University of Pennsylvania Wharton School - Business Economics and Public Policy Department

3641 Locust Walk
Philadelphia, PA 19104-6372
United States

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