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34 Notre Dame J.L. Ethics & Pub. Pol'y 123 (2020)
Punishing Vandalism Correctly in an Access Economy

handle is hein.journals/ndlep34 and id is 131 raw text is: PUNISHING VANDALISM CORRECTLY IN AN ACCESS ECONOMY W.C. BUNTING, J.D., PH.D.* ABSTRACT This Article argues that the social impact of vandalism must be factored into the expected criminal punishmentfor this offense. Existing law does so unevenly. Acts of vandalism may have a positive social impact, either as street art or as a form ofprotected speech, or a negative social impact as costs that preclude the provision ofpublic goods or goods traded upon the basis ofaccess, and not ownership. In general, vandalism cannot be prevented by means of observable security measures; rather, vandalism must be deterred by means ofhigher expected criminal punishment. A large expected punishment, however, implicates what this Article terms the broken community theory ofpunishment. Although broken community effects militate in favor of relatively minimal punishment for vandalism, a negative consequence of this punitive approach is less investment in the infrastructure or physical appearance of urban communities. Many urban communities may, in fact, benefit significantly from vandalism laws that allow for greater capital investment by more harshly punishing the deliberate damage or destruction ofpublic goods or goods traded upon the basis ofaccess, as vandalism in thefirst degree. INTRODUCTION The access economy is a business model under which goods and services are traded upon the basis of access as opposed to ownership: under this model, assets are rented temporarily rather than sold permanently.' The access economy represents an increasingly important business model, as the world is * The author is an Assistant Professor in the Department of Business Law at the Fox School of Business and Management at Temple University. Email: william.bunting@temple.edu. This research did not receive any specific grant from funding agencies in the public, commercial, or not- for-profit sectors. The author wishes to thank Constance Burni, Katie Cronin, and all the other Notre Dame Journal of Law, Ethics and Public Policy editors for their invaluable assistance and time- consuming work in editing this Article. All errors should be attributed to the author alone. 1. See, e.g., Giana M. Eckhardt& Fleura Bardhi, The Sharing Economy Isn'tAbout Sharing at All, HARV. Bus. REV., (Jan. 28, 2015), https://hbr.org/2015/01/the-sharing-economy-isnt-about- sharing-at-all (introducing the term access economy as a correction to the term sharing economy because important companies in the sharing economy, such as Airbnb, Zipcar, and Uber, are commercial enterprises whose businesses do not involve sharing of any kind). 123

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