Sunday, February 12, 2012
Murat C. Mungan (Florida State University - College of Law) has posted The Law and Economics of Fluctuating Criminal Tendencies (FSU College of Law) on SSRN. Here is the abstract:
Law and economics is one of the most successful legal disciplines, and it is used frequently to study various legal issues, doctrines, and policies. Its application to criminal law has received great attention by economists as well as lawyers. But, economic analyses of criminal law are often criticized for employing unrealistic assumptions and performing poorly in providing rationales for various criminal law doctrines. In light of these criticisms, one may be tempted to jump to the conclusion that law and economics in particular, and consequentialist approaches in general, are inappropriate for studying criminal law and procedure.
In this article, I demonstrate that the poor performance of economic analyses in providing rationales for a number of criminal law doctrines is not the result of some inherent problem with consequentialism, but its narrow application. Specifically, I show that the two main criticisms mentioned above are interrelated, and that addressing the first - by employing more realistic assumptions - at least partially resolves the second.
In particular, economic analyses of criminal law can achieve greater explanatory power by incorporating two simple facts: (i) the degree of control one can exert over himself to abstain from committing a wrongful act fluctuates over time, and (ii) the incapacitative function of imprisonment contributes to reductions in crime. Despite the simplicity of observing these two facts, almost all normative economic analyses of criminal law ignore them. Instead, they assume that criminals have constant criminal tendencies, and that the only benefit of imprisonment is deterrence.
This article demonstrates that an economic analysis incorporating the two simple facts mentioned above provides convincing rationales for (i) why repeat offenders are punished more severely, (ii) why there is a de facto tendency to punish offenders, who are believed to be remorseful, less severely, and (iii) why voluntary manslaughter is punished less severely than murder. Because previous economic analyses employing narrower approaches face difficulties in providing similar rationales, I conclude that the economic approach gains significant explanatory power by applying consequentialism more broadly.