(Non)Regulable Avoidance and the Perils of Punishment

31 Pages Posted: 12 Apr 2007 Last revised: 1 Dec 2008

See all articles by Jacob Nussim

Jacob Nussim

Bar-Ilan University - Faculty of Law

Avraham D. Tabbach

Tel Aviv University

Date Written: April 1, 2007


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.

Keywords: avoidance, crime, deterrence, enforcement

JEL Classification: K14, K42

Suggested Citation

Nussim, Jacob and Tabbach, Avraham D., (Non)Regulable Avoidance and the Perils of Punishment (April 1, 2007). Bar Ilan University, Public Law and Legal Theory Working Paper No. 07-05; European Journal of Law and Economics, Forthcoming. Available at SSRN: https://ssrn.com/abstract=979363

Jacob Nussim (Contact Author)

Bar-Ilan University - Faculty of Law ( email )

Faculty of Law
Ramat Gan, 52900
972-3-531-7088 (Phone)
972-3-535-1856 (Fax)

Avraham D. Tabbach

Tel Aviv University ( email )

Ramat Aviv
Tel Aviv 69978, IL

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