Legislating for profit and optimal Eighth-Amendment review

Authors

Murat C. Mungan, Texas A&M University School of LawFollow
Thomas J. Miceli

Document Type

Article

Publication Date

3-2021

Journal Title

Economic Inquiry

ISSN

0095-2583

DOI

10.1111/ecin.12968

Abstract

We compare a net-revenue maximizing legislator's criminalization and punishment decisions to the optimal choices. The legislator over-criminalizes and over-punishes all criminalized acts when the degree to which it internalizes harms from crimes increases proportionally with the harm. An analysis of Eighth-Amendment review, in the form of upper-bounds on fines, reveals that it can both reduce fines to their optimal levels and remove the legislator's incentives to inefficiently criminalize low-harm acts in the first place. These results provide a rationale for asymmetric judicial review wherein upper-bounds are imposed on punishment, but lower-bounds are not.

First Page

1403

Last Page

1416

Num Pages

14

Volume Number

59

Issue Number

3

Publisher

Western Economic Association International

Recommended Citation

Murat C. Mungan & Thomas J. Miceli, Legislating for profit and optimal Eighth-Amendment review, 59 Econ. Inquiry 1403 (2021).
Available at: https://scholarship.law.tamu.edu/facscholar/1836