Legislating for profit and optimal Eighth-Amendment review
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