The Scope of Punishment: An Economic Theory

18 Pages Posted: 8 Jul 2010 Last revised: 15 Mar 2011

See all articles by Nuno Garoupa

Nuno Garoupa

George Mason University - Antonin Scalia Law School, Faculty

Marie Obidzinski

Université Paris II - Panthéon-Assas

Date Written: July 7, 2010

Abstract

The harm caused by many acts is not certain but probabilistic. Current public enforcement of the law combines harm-based sanctions (usually in criminal law) with act-based sanctions (very common in administrative law and regulation). We propose an economic theory of the choice between harm-based and act-based sanctions in public enforcement. The efficiency of act-based versus harm-based sanctions is analyzed and a typology of the determinants is drawn up. Our model suggests that harm based sanctions are more efficient when (i) acquiring information about the act is important, (ii) engaging in harm avoidance activities is advisable, (iii) judgment-proofness is not a very significant problem, (iv) punishment is especially costly, (v) changes in law are expensive or difficult to negotiate and (vi) on average, potential criminals are better informed than the government about losses for society. Legal policy implications are discussed.

Keywords: harm-based sanction, act-based sanction, uncertain harm

JEL Classification: K4

Suggested Citation

Garoupa, Nuno and Obidzinski, Marie, The Scope of Punishment: An Economic Theory (July 7, 2010). European Journal of Law and Economics, Forthcoming; U Illinois Law & Economics Research Paper No. LE10-016; Illinois Public Law Research Paper No. 10-28. Available at SSRN: https://ssrn.com/abstract=1635964

Nuno Garoupa (Contact Author)

George Mason University - Antonin Scalia Law School, Faculty ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

Marie Obidzinski

Université Paris II - Panthéon-Assas ( email )

12 place du Pantheon
Paris cedex 06, 75231
France

Register to save articles to
your library

Register

Paper statistics

Downloads
134
rank
210,340
Abstract Views
914
PlumX Metrics
!

Under construction: SSRN citations while be offline until July when we will launch a brand new and improved citations service, check here for more details.

For more information