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More Carrots, Fewer Sticks

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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7 Responses

  1. Larry Rosenthal says:

    Why, I wonder, is it “better” to offer “rewards for information leading to the arrest of a suspect” than to “threaten[] people with accomplice liability”? Rewards often generate large quantities of unreliable leads. For example, it appears that the decision to offer bounties for information leading to the arrest of suspected terrorists was a major reason that many innocent persons were taken into custody in Afghanistan.

    To be sure, the authorities sometimes do offer rewards (more often for information leading to a conviction, not an arrest), but not in the routine case. This usually occurs only in high-profile investigations that lack promising leads. This is when the authorities are willing to expend the resources needed to sort through a large volume of leads of often dubious reliability provided by those who seek a reward, and are willing to present their hunches as facts in the hope that they turn out to be right, and can then claim a reward.

    Conversely, threats of accomplice liability in order to obtain cooperation are self-regulating in important respects. If the authorities have little ability to actually convict the accomplice, the threat is empty. The value of sentencing discount to the accomplice, in turn, in measured by the value that the cooperator ultimately has to the investigation — something that is determined by a neutral sentencing judge only after the accomplice’s account has been tested by further investigation, and often by cross-examination in the trial of the individual against whom the accomplice has cooperated. Moreover, if the discount is too high — such as a grant of immunity — this compromises the accomplice’s credibility in the eyes of the trier of fact, so prosecutors have an incentive to avoid excessive discounts. It is, moreover, far from apparent that an accomplice seeking a reduced sentence is less likely to provide inaccurate information than an individual seeking a reward.

    This seems to me to be one of those occasions on which an empirical claim really ought to be supported with empirical evidence.

    Larry Rosenthal
    Chapman University School of Law

  2. Gerard Magliocca says:

    Hi Larry,

    Well, my point is that there are some circumstances where a reward is the best approach. So I’m interested in thinking about whether a general principle can be developed around that concept. You are quite right that there are many instances in which sanctions (criminal or civil) are the superior choice.

  3. A.J. Sutter says:

    Larry’s discussion of accomplice liability assumes that there is an alleged accomplice who’s been identified, and who can be pressured. Rewards, on the other hand, can be offered to the community as a whole; as Larry points out, this tactic is often used is in cases where there aren’t significant leads in the case. Threatening the entire community with accomplice liability is not so effective in peacetime (albeit perhaps a common tactic in wartime). While empirical evidence for each assertion would be helpful, I think the situations Gerard and Larry are addressing are complementary.

    One area in which the rewards approach has gotten a lot of attention recently is as a way to reduce to intellectual property “anti-commons” problems.

  4. Lawrence Cunningham says:

    I concur with the post’s thesis. I like the attempt to offer a broad framework. I contributed the same thesis in the particular context of corporate compliance, especially financial statement auditing, by prescribing a shift from the current liability threat for audit failure to a rewards system for discovering and reporting financial misstatements. It is called Beyond Liability: Rewarding Effective Gatekeepers, 92 Minn. L. Rev. 323 (2007) (available at ssrn.com/abstract_id=1022360).

  5. Gerard Magliocca says:

    AJ & Larry,

    Thanks — your thoughts about anti-commons and corporate compliance are really helpful.

  6. ParatrooperJJ says:

    There is an affirmative duty to rescue a vessel in distress already.

  7. Gerard Magliocca says:

    Not under most circumstances. Besides, you would be hard pressed to find many examples of a vessel being sanctioned for failing to rescue another. The enforcement costs are just way too high. (I’m talking about private vessels, not about the Coast Guard or the Navy.)

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