Legislating for profit and optimal Eighth-Amendment review Academic Article uri icon


  • AbstractWe compare a netrevenue maximizing legislator's criminalization and punishment decisions to the optimal choices. The legislator overcriminalizes and overpunishes all criminalized acts when the degree to which it internalizes harms from crimes increases proportionally with the harm. An analysis of EighthAmendment review, in the form of upperbounds on fines, reveals that it can both reduce fines to their optimal levels and remove the legislator's incentives to inefficiently criminalize lowharm acts in the first place. These results provide a rationale for asymmetric judicial review wherein upperbounds are imposed on punishment, but lowerbounds are not.

published proceedings


altmetric score

  • 1

author list (cited authors)

  • Mungan, M. C., & Miceli, T. J.

citation count

  • 6

complete list of authors

  • Mungan, Murat C||Miceli, Thomas J

publication date

  • July 2021