Research Handbook on the Economics of Criminal Law

Research Handbook on the Economics of Criminal Law

Research Handbooks in Law and Economics series

Edited by Alon Harel and Keith N. Hylton

Jeremy Bentham and Gary Becker established the tradition of analyzing criminal law in utilitarian and economic terms. This seminal book continues that tradition with specially commissioned, original papers that span the philosophical foundations of the use of economics in criminal law, both traditional economic perspectives and behavioral and experimental approaches to the discipline.

Chapter 9: The Economics of Prosecutors

Nuno Garoupa

Subjects: economics and finance, law and economics, law - academic, criminal law and justice, law and economics

Extract

Nuno Garoupa* 1. INTRODUCTION The role of prosecutors in any given legal system is of critical importance in enforcing and effectively applying the law – criminal law in particular, as well as other areas of the law such as family law1 and class action litigation.2 The exact nature of the work performed by prosecutors and their institutional organizations varies across legal systems. Surprisingly, economists have studied prosecutors very little when compared to other legal and judicial professions.3 For a long time, the efficient prosecutor model has prevailed in law and economics, in particular since the publication of foundational works by Landes (1971) and Easterbrook (1983). Only more recently have economists started looking at prosecutors’ preferences and behavior, and at their role in shaping the legal system.4 For example, in the efficient prosecutor model, it only makes sense to provide full discretion to the prosecutor, particularly in the prosecution of more meritorious cases, in order to achieve efficient deterrence. Therefore, most rules of criminal procedure limiting the role of the prosecutor are inevitably inappropriate. Such was the general reasoning of the law and economics literature until recently.5 A more realistic economic model of prosecutors requires a deeper understanding of preferences, incentives, and institutional contexts. As with any other economic agent, we need to establish the preferences of prosecutors. At the same time, in order to explain their behavior, we must attend to the institutional incentives and constraints. This chapter proposes that relevant differences concerning prosecutorial functions across the world deserve more serious...

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