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

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  • Garoupa, Nuno
  • Obidzinski, Marie

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.

Suggested Citation

  • Garoupa, Nuno & Obidzinski, Marie, 2006. "The Scope of Punishment: An Economic Theory of Harm-Based vs. Act-Based Sanctions," CEPR Discussion Papers 5899, C.E.P.R. Discussion Papers.
    • Handle: RePEc:cpr:ceprdp:5899
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    References listed on IDEAS

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    • K4 - Law and Economics - - Legal Procedure, the Legal System, and Illegal Behavior

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