Baer on Temporal Inconsistency and the Regulation of Corporate Misconduct

Miriam H. Baer (Brooklyn Law School) has posted Temporal Inconsistency and the Regulation of Corporate Misconduct (Virginia Journal of Criminal Law (2013), Forthcoming) on SSRN. Here is the abstract:

This is a comment written for the Virginia Journal of Criminal Law responding to Professor Manuel Utset’s work on temporal inconsistency and its application to corporate misconduct. 

Over the years, Professor Utset has done us a great service by highlighting and explaining the hyperbolic discounting literature, and using it to better understand corporate failures and the laws and regulations that lawmakers have enacted in response to those failures. 

In this Comment, I suggest three related choices that lawmakers and regulators must confront as they attempt to incorporate temporal inconsistency into their regulatory agenda.

The first choice is between sanctions and enforcement measures. The second choice is between ex post sanction-based enforcement and a more structural, ex ante type of intervention. And the third choice is between public regulation and private ordering. None of these choices are particularly easy, and all three are somewhat interconnected. They thus demonstrate just how tricky it is for lawmakers and policymakers to tackle the problem of temporal inconsistency within corporate settings.