Richard A. Bierschbach
Yeshiva University - Benjamin N. Cardozo School of Law
Brooklyn Law School
Georgetown Law Journal, Vol. 93, No. 6, 2005
Cardozo Legal Studies Research Paper No. 148
Overenforcement of the law is widespread but underinvestigated. Overenforcement occurs when the total sanction, both legal and extralegal, suffered by the violator of a legal rule exceeds the amount optimal for deterrence. Overenforcement sometimes generates overdeterrence that cannot be remedied through the adjustment of substantive liability standards or penalties in light of operational and expressive constraints. When that happens, the legal system can counteract the effects of overenforcement by adjusting evidentiary or procedural rules to make liability less likely. This framework, which we call the overenforcement paradigm, illuminates previously unnoticed features of various evidentiary and procedural arrangements. It also provides a useful analytical and prescriptive tool for creating balanced incentives in cases in which overenforcement is present.
Number of Pages in PDF File: 40
Date posted: June 14, 2005