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9 - Criminal Law A Like tort law someone does a wrong we...

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Criminal Law: A. Like tort law, someone does a wrong, we impose a cost on him, but ... o 1. Enforced by the state, not by the victim. Legally speaking, the state is the victim. o 2. State collects fine, if any. o 3. Mostly punishment rather than mostly fines. o 4. Moral stigma? o 5. Higher standard of proof. B. Note that the Tort/Crime distinction may be less clear than we usually think. o 1. Traffic tickets are state imposed, collected, fines w/o moral stigma. o 2. Criminal charges are often dependant on the victim complaining, and ... o 3. In some cases (Michael Jackson?), de facto out of court settlement is possible. o 4. There have been other societies where criminal law was privately prosecuted, or even ... o 5. Where all offenses were treated roughly as we treat civil offenses. C. Simple story: Enforcing property rules. o 1. Optimal level of some offenses is close to zero o 2. Most obviously because there is a market substitute, so if the result that would be produced by the offense (your using my land) is efficient it will happen that way even if the offense is prevented. a. Theft is the obvious example. b. Assault not so clear. c. Would we accept consensual market murder? A rich man offers ten adventurers $100,000 each, in exchange for their agreement that he may select one of them at random and try to kill him. o 3. So we set very high punishment, > damage done, to deter everything. But ... D. That doesn't describe the real system, since: o 1. Expected penalty for murder is <damage done. o 2. Lots of crimes happen--level is not zero. Do we think they are efficient crimes? o 3. So what determines the optimal punishment? o 4. If it were =damage done we again have a problem--that implies that the reason we don't raise the punishment for murder is concern that there would be too few murders, which seems implausible.
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