The Limit of Law: Factors Influencing the Decision to Make Harmful Acts Illegal

18 Pages Posted: 23 Jul 2020 Last revised: 24 Jul 2020

See all articles by Thomas J. Miceli

Thomas J. Miceli

University of Connecticut - Department of Economics

Murat C. Mungan

George Mason University - Antonin Scalia Law School, Faculty

Date Written: July 23, 2020

Abstract

This paper examines factors affecting the decision of whether or not to make certain harmful acts illegal. It considers factors related both to the cost of law enforcement and to the crime commission decision. On the enforcement side, illegality is limited by the existence of fixed notice and response costs, which are unrelated to the harm from the act, and also by costs of imposing punishment. In addition, illegality is limited by a finite marginal productivity of detection, one cause of which is legal error. On the commission side, illegality is limited if all offenders have strictly positive benefits from committing the act. The paper concludes by examining how the optimal scope of law is affected by its "expressive function," the idea that some people are deterred by the mere fact that an act is illegal. We specifically ask how the scope of law changes if more people behave in this way. The answer depends on whether "efficient" violations of the law are possible, which in turn depends on whether offenders' gains are counted in welfare.

Keywords: Crime, illegality, law enforcement, expressive function of law

JEL Classification: K14, K42

Suggested Citation

Miceli, Thomas J. and Mungan, Murat C., The Limit of Law: Factors Influencing the Decision to Make Harmful Acts Illegal (July 23, 2020). George Mason Law & Economics Research Paper No. 20-22, Available at SSRN: https://ssrn.com/abstract=3659302 or http://dx.doi.org/10.2139/ssrn.3659302

Thomas J. Miceli

University of Connecticut - Department of Economics ( email )

365 Fairfield Way, U-1063
Storrs, CT 06269-1063
United States
860-486-5810 (Phone)
860-486-4463 (Fax)

Murat C. Mungan (Contact Author)

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

3301 Fairfax Drive
Arlington, VA 22201
United States

Here is the Coronavirus
related research on SSRN

Paper statistics

Downloads
29
Abstract Views
214
PlumX Metrics