The Scope of Punishment: An Economic Theory of Harm-Based vs. Act-Based Sanctions

21 Pages Posted: 29 Dec 2006

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: October 2006

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. In the simple model with risk neutral offenders, both legal policies have the same deterrent level, but act-based sanctions end up punishing more people and the sanctions are lower. However when the assessment of the probability of harm diverges across individuals, the choice between harm-based or act-based sanctions depends on whether it is the enforcer or the average individual who is better informed. 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 of Harm-Based vs. Act-Based Sanctions (October 2006). CEPR Discussion Paper No. 5899. Available at SSRN: https://ssrn.com/abstract=954119

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
20
Abstract Views
955
PlumX Metrics