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Overenforcement

40 Pages Posted: 14 Jun 2005  

Richard A. Bierschbach

Wayne State University Law School

Alex Stein

Brooklyn Law School

Abstract

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.

Suggested Citation

Bierschbach, Richard A. and Stein, Alex, Overenforcement. Georgetown Law Journal, Vol. 93, No. 6, 2005; Cardozo Legal Studies Research Paper No. 148. Available at SSRN: https://ssrn.com/abstract=742067

Richard A. Bierschbach (Contact Author)

Wayne State University Law School ( email )

471 Palmer
Detroit, MI 48202
United States

Alex Stein

Brooklyn Law School ( email )

250 Joralemon Street
Brooklyn, NY 11201
United States
718-780-0615 (Phone)

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