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Legislating for profit and optimal Eighth‐Amendment review

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  • Murat C. Mungan
  • Thomas J. Miceli

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.

Suggested Citation

  • Murat C. Mungan & Thomas J. Miceli, 2021. "Legislating for profit and optimal Eighth‐Amendment review," Economic Inquiry, Western Economic Association International, vol. 59(3), pages 1403-1416, July.
    • Handle: RePEc:bla:ecinqu:v:59:y:2021:i:3:p:1403-1416
    DOI: 10.1111/ecin.12968
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    References listed on IDEAS

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    Cited by:

    1. Miceli, Thomas J. & Mungan, Murat C., 2021. "An economic theory of optimal enactment and enforcement of laws," International Review of Law and Economics, Elsevier, vol. 68(C).
    2. Gilles Grolleau & Murat Mungan & Naoufel Mzoughi, 2022. "Letting Offenders Choose Their Own Punishment ?," Post-Print hal-03694337, HAL.

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