Sanchirico, Chris William --- "Detection Avoidance and Enforcement Theory" [2012] ELECD 95; in Sanchirico, William Chris (ed), "Procedural Law and Economics" (Edward Elgar Publishing, 2012)

Book Title: Procedural Law and Economics

Editor(s): Sanchirico, William Chris

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781847208248

Section: Chapter 7

Section Title: Detection Avoidance and Enforcement Theory

Author(s): Sanchirico, Chris William

Number of pages: 43

Extract:

7 Detection avoidance and enforcement
theory
Chris William Sanchirico


1 Introduction
The subject of evidentiary foul play ­ inclusive of fabricated testimony,
document destruction, and myriad other modes of detection avoidance
­ is underrepresented in both legal and law and economic scholarship
on procedure and evidence. Judges and practitioners report that eviden-
tiary misdeeds are commonplace (though systematic evidence is scarce).
Explicit scholarly analysis of evidentiary misbehavior, however, is rela-
tively uncommon.
This chapter considers attempts to add evidentiary misconduct to the
conventional economic model of enforcement (Becker (1968) and others).
In such context, evidentiary misconduct is typically referred to generi-
cally as "detection avoidance." Another chapter in this volume, Evidence:
Theoretical Models, reviews the chief formal approaches to legal evidence.
To varying extents the models reviewed in that chapter also take on the
issue of evidentiary foul play, though in a different manner.
This chapter begins in Section 2 with a brief overview of the rather
complex legal landscape that covers evidentiary misconduct. This is fol-
lowed in Section 3 with a description of how the economic framework
conventionally employed in studying enforcement must be expanded to
accommodate detection avoidance activities. Section 4 examines a particu-
lar consequence of this expansion in the case in which detection avoidance
activities are not themselves sanctioned ­ namely, that maximal sanctions
may no longer be optimal. Sections 5 and 6 consider the sanctioning of
detection avoidance activities themselves. Section 6 also examines the dif-
ficult problems for a sanctioning approach that are caused by the ...