“Cooperation’s Cost,” a paper written by Professor Miriam Baer, was competitively selected for presentation at Yale Law School as part of the Yale/Stanford Junior Faculty Forum in late June. Baer’s piece continues an impressive legacy of BLS Faculty who have been selected for this forum, including Christopher Serkin, Dana Brakman Reiser, Edward Janger, and Frederic Bloom. Baer’s article, which was blindly selected, will be one of only two papers for the panel on criminal law. It will be commented on by Yale Law School Professors Steven B. Duke and Kate Stith.
Inclusion in the Yale/Stanford Junior Faculty Forum is part of a string of impressive honors Baer has already received for this piece. “Cooperation’s Cost” was selected for presentation at the Federalist Society's Young Legal Scholars Panel at the Society’s 12th annual faculty conference held in New Orleans in January. It was also presented at the American Law and Economics Association’s Annual Meeting in May at Princeton University. It will be published in the Washington University Law Review (Vol. 88, forthcoming 2011).
“Cooperation’s Cost” explores the practice of cooperation, whereby federal prosecutors offer criminal defendants the possibility of reduced sentences in exchange for assisting the government in detecting and prosecuting other criminals. Baer’s article utilizes law and economics to analyze cooperation’s theoretical effect on deterrence. Baer developed the concept for this piece while attending the Law & Society’s Early Career Workshop in 2009. “There had been a lot written about the pros and cons of cooperation, but no one had really thought about its effects on deterrence,” said Baer. “I wanted to apply a law and economics analysis to the issue.”
Her article contends that cooperation exerts two effects on deterrence: a “Detection Effect,” which increases the government’s overall ability to detect and punish criminals; and a “Sanction Effect,” which reduces the sentence that the defendant expects to receive upon being apprehended, assuming he believes he can secure a cooperation agreement with the government. Baer argues that contrary to common assumptions, cooperation may reduce overall deterrence, particularly if the government extends too many cooperation agreements or overpays cooperators, or if criminals become overly optimistic about their ability to secure such agreements.
Baer hopes that the article will cause policymakers to reevaluate the assumption that cooperation always deters. “Regulators have shown an increased interest in using cooperation as a law enforcement tool, particularly at the SEC’s Division of Enforcement. They would do well to proceed with caution.”
The article has inspired further research, and Baer plans to follow it up with future analysis. “The article sets up a nice roadmap for future empirical research and study. Comparisons of cooperation policies across different United States Attorneys’ offices, as well as empirical testing of how potential offenders view cooperation would add to our understanding of the theoretical benefits and costs that I lay out in the article.”