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A Public Choice Theory of Criminal Procedure


Keith N. Hylton


William Fairfield Warren Distinguished Professor, Boston University; Professor of Law, Boston University School of Law

Vikramaditya S. Khanna


University of Michigan Law School


Supreme Court Economic Review, Vol. 15, pp. 61-118, 2007
Boston Univ., Law and Economics Research Paper No. 01-02
Harvard Law and Economics Discussion Paper No. 318

Abstract:     
In this paper we provide an economic justification for the pro-defendant bias in American Criminal Procedure that we argue paints a more complete picture of the extent and breadth of these pro-defendant procedures than the most commonly forwarded justifications to date. The most commonly forwarded rationale for the pro-defendant bias in American Criminal Procedure is that the costs associated with false convictions (i.e., sanctioning and deterrence costs associated with the erroneous imposition of criminal sanctions) are greater than the costs associated with false acquittals. We argue that on closer inspection this rationale does not justify the extent of our pro-defendant criminal procedures. We offer another justification for these protections: to constrain the costs associated with abuses of prosecutorial or governmental authority. In a nutshell, our claim is that these procedural protections make it more costly for self-interested actors, whether individuals or government enforcement agents, to use the criminal process to obtain their own ends. Such protections help to reduce the rent-seeking and deterrence costs associated with abuses of prosecutorial or governmental authority in the criminal sphere. The theory developed here explains several key institutional features of American Criminal Procedure and provides a positive theory of the case law as well. The theory is also corroborated by empirical evidence on corruption from several countries.

Number of Pages in PDF File: 56

JEL Classification: K14, K41

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Date posted: April 4, 2001  

Suggested Citation

Hylton, Keith N. and Khanna, Vikramaditya S., A Public Choice Theory of Criminal Procedure. Supreme Court Economic Review, Vol. 15, pp. 61-118, 2007; Boston Univ., Law and Economics Research Paper No. 01-02; Harvard Law and Economics Discussion Paper No. 318. Available at SSRN: http://ssrn.com/abstract=265795 or http://dx.doi.org/10.2139/ssrn.265795

Contact Information

Keith N. Hylton (Contact Author)
William Fairfield Warren Distinguished Professor, Boston University ( email )
595 Commonwealth Avenue
Boston, MA 02215
United States
617-353-8959 (Phone)
Professor of Law, Boston University School of Law ( email )
765 Commonwealth Avenue
Boston, MA 02215
United States
617-353-8959 (Phone)
617-353-3077 (Fax)
Vikramaditya S. Khanna
University of Michigan Law School ( email )
625 South State Street
Ann Arbor, MI 48109-1215
United States
734-615-6959 (Phone)
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