Age-old challenge-- Professor shares tough issues of criminal law with students

By Sheila Pursglove Legal News Part of what's fascinating about criminal law is trying to define its domain, according to J.J. Prescott, a professor at the University of Michigan Law School. "Why are some 'bad' behaviors considered criminal, while others are simply civil wrongs, or moral wrongs? This is an age-old challenge, one that will never be resolved," he says. Criminal law--and employment law, which Prescott also teaches--can be thought of as sets of policies or doctrines designed to deal with specific social problems, he says. "Once we know what behavior or harm we wish to minimize or eliminate, the question becomes, what combinations of policies will allow us to make improvements at the lowest overall social cost?" Social costs, he adds, broadly include losses due to unfairness as well as errors in outcomes--either in terms of people being wrongly convicted, criminals not being caught, or sentences being inappropriate for some other reason. "If a legal system generates too many of these errors or too much delay, it will lose legitimacy and become even less effective," he explains. Prescott notes there are also important indirect social costs that emerge from systems that are poorly designed or prone to error. "In the criminal law context, for example, law-abiding citizens may change their behavior, usually at some cost to themselves or society, simply to avoid the possibility of being confused for criminals. Ideally, the law should avoid 'chilling' lawful, productive behavior. Likewise, in the employment law context, inadequate substantive and procedural law can lead to suboptimal investments in education and training." Employment law differs from criminal law in that it regulates, typically, a long-term relationship--employment - between two or more parties. "One might think there's no reason whatsoever for specialized 'law' when an employee and employer might be able to work it out between themselves, and indeed, in many areas, there isn't--the law of contracts pervades," he says. "But, the market doesn't always work very well. In many such cases, the law can protect vulnerable third parties and make everyone, including employers, better off." Nevertheless, as a form of substantive regulation of behavior, employment law is much more hands-off than criminal law. While the government sets some of the "rules of the game," many of these can be waived or traded-away, Prescott says. "Among the exceptions to this norm are anti-discrimination laws, which are typically mandatory prohibitions," he says. "Even so, when discrimination does occur, it's usually up to a wronged individual, not the state, to enforce his or her rights by filing a complaint." According to Prescott, the law plays a big part in setting the stage for human decision-making. "We can't change the law of gravity or how fast we can think or run--not yet--but we can change the environment in which we make decisions--to go to school, to have a family, to work hard, to invest in a business, to forgo committing crimes--by changing the law," he says. "Substantive law is the most obvious way this happens, but procedural law accomplishes the same indirectly by making substantive law more or less difficult to use." Prescott's current research includes an examination of the effects of sex offender registration and notification laws on the frequency and incidence of sex crimes; a project exploring the unintended consequences of retaliation as a cause of action in anti-discrimination law; an empirical evaluation of the effects of prosecutor race and sex on charging and sentencing outcomes using a unique data set from New Orleans; a study of the socio-economic consequences of criminal record expungement using micro-level data from Michigan; and a paper that develops a theoretical model to explain the use of high-low agreements in civil litigation and tests the model's predictions using detailed insurance data. Relative to the rest of criminal law, sex offender registration and other sex offender post-release rules are new and novel, Prescott says. "These laws get a ton of press and people have very strong feelings about sex offenders generally and the threats they may pose. But, there is really very little evidence to support using registration and notification laws to reduce crime. Prescott, who joined the U-M faculty in June 2006, enjoys working with others, and the back-and-forth of teaching law. "A lot of my research is collaborative," he says. "And I generally believe teaching is a two-way exchange--I learn a lot from the students, and I hope they learn a great deal from me. It's incredibly rewarding to watch the light bulbs of new law students, in particular, pop on as they start to grasp how this 'law stuff' actually works. Published: Mon, Jul 23, 2012

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