Law: Defense of Insanity

A defendant found not guilty by reason of insanity See also: Crime and Class; Criminal Defenses; Crimi- is automatically committed to an insane asylum. nal Law and Crime Policy; Deterrence: Legal Per- Release is dependent on a judicial hearing in the spectives; Expert Testimony; Guilt presence of a public prosecutor and on the pres- entation of a medical expert’s report that, in his or her view, the patient no longer constitutes a danger to self or others. Bibliography Allen F 1964 The Borderline of Criminal Justice. University of Chicago Press, Chicago, p. 105 4.2 Israel Simon R J, Aaronson D E 1988 The Insanity Defense. Praeger, New York, p. 22 The Israeli Penal Law updated in 1983 reads as Stone A 1975 Mental Health and Law: A System in Transition. follows: ‘A person shall not bear the criminal re- DHEW pub. no. (ADM) 75–176. NIMH, Rockville, MD, sponsibility for an act that he has committed if, by p. 218 reason of a mental illness or defect, he is incapable of choosing between performing the act and refraining R. J. Simon from doing so.’

4.3 Kenya Law: Economics of its Public Enforcement Kenya’s standard also reads much like M’Naghten: ‘Where an act or omission is charged against a person as an offence, and it is given in evidence in the trial of In this article we consider the economic theory of the that person for that offence that he was insane so as public enforcement of law—the use of public agents not to be responsible for his acts or omissions at the (inspectors, tax auditors, police, prosecutors) to detect time when the act was done or the omission made, then and to sanction violators of legal rules. Economically- if it appears to the court before which the person is oriented analysis of public law enforcement dates tried that he did the act or made the omission charged from the eighteenth century contributions of but was insane at the time he did or made it, the court Montesquieu (1748), Beccaria (1767), and, especially, shall make a special finding to the effect that the Bentham (1789). Curiously, after Bentham (1789), the accused was guilty of the act or omission charged subject of enforcement lay essentially dormant in but was insane when he did the act or made the economic scholarship until the late 1960s, when Becker omission.’ (1968) published a highly influential article that has led If a defendant is found to be insane, the case is to a voluminous literature. In Sects. 1 through 3, we reported to the president; the accused is placed in present the basic elements of the theory of public custody—in either a mental hospital or a prison—and enforcement. Our concern is with the probability of remains under the jurisdiction of the court. imposition of sanctions, the magnitude and form of sanctions, and the rule of liability. In Sects. 4 through 14 we then examine a variety of extensions of the central theory, including accidental harms, costs 4.4 Japan of imposing fines, mistake, marginal deterrence, The Japanese Criminal Code—amended in 1954— settlement, self-reporting, repeat offenses, and in- states simply: ‘An Act of a person of unsound mind is capacitation. (A more expansive treatment of the not punishable. Punishment shall be reduced for acts subject of this article is contained in Polinsky and of weak-minded persons.’ Shavell 2000.)

4.5 South Korea 1. The Basic Framework The South Korean Criminal Code—amended in An individual (or a firm) chooses whether to commit 1960—reads as follows: ‘A person is not punishable if, an act that for simplicity is assumed to cause harm because of mental disorder, he is unable to pass with certainty. If he commit the act, he obtains some rational judgment or to control his will.’ gain, and also faces the risk of being caught, found South Korea also allows for diminished responsi- liable, and sanctioned. The rule of liability could be bility: ‘The punishment of a person who, due to a either strict—under which he is definitely sanctioned; mental disorder, is deficient in the capacity mentioned or fault-based—under which he is sanctioned only if in the preceding Section, shall be mitigated.’ his behavior fell below a fault standard. The sanction

8510 Law: Economics of its Public Enforcement that he suffers could be a monetary fine, a prison term, harmful act if, and only if, the gain he would derive or a combination of the two. from it exceeds the harm he would cause. Essentially Whether an individual chooses to commit a harmful this basic formula was noted by Bentham (1789, act is determined by an expected utility calculation. p. 173) and it has been commented upon by many He will commit the act if that would raise his expected others since. utility, taking into account the gain he would derive If individuals are risk averse with regard to fines, the and the subsequent probability of being caught and optimal fine would tend to be lower than in the risk- sanctioned. We will usually first examine the assump- neutral case for two reasons. First, reducing the fine tion that individuals are risk neutral with respect to reduces the bearing of risk by individuals who commit sanctions, that is, that they treat an uncertain sanction the harmful act. Second, because risk-averse indivi- as equivalent to its expected value; but we will also duals are more easily deterred than risk-neutral indivi- consider alternative assumptions. duals, the fine does not need to be as high as before to Social welfare is presumed to equal the sum of achieve any desired degree of deterrence. individuals’ expected utilities. An individual’s ex- Next assume that imprisonment is the form of pected utility depends on whether he commits a harm- sanction. In this case, there is not a simple formula for ful act, on whether he is a victim of someone the optimal imprisonment term. The optimal term else’s harmful act, and on his tax payment, which could be such that there is either underdeterrence or will reflect the costs of law enforcement, less any fine overdeterrence, compared to socially ideal behavior. revenue collected. If individuals are risk neutral, social On one hand, a relatively low imprisonment term, welfare can be expressed simply as the gains in- implying underdeterrence, might be socially desirable dividuals obtain from committing his acts, less the because it means that imprisonment costs are reduced arms caused, and less the costs of law enforcement. with respect to those individuals who commit harmful We assume, as is conventional, that fines are socially acts. On the other hand, a relatively high term, costless to employ because they are mere transfers of implying overdeterrence, might be socially desirable money, whereas imprisonment involves positive social because it means that imprisonment costs are reduced costs because of the expense associated with the due to fewer individuals committing harmful acts. operation of prisons and the disutility due to im- Now consider the combined use of fines and prisonment. imprisonment. Here, the main point is that fines should The enforcement authority’s problem is to maximize be employed to the maximum extent feasible before social welfare by choosing enforcement expenditures, resort is made to imprisonment. In other words, it is or, equivalently, a probability of detection, the level of not optimal to impose a positive imprisonment term sanctions and their form (a fine, prison term, or unless the fine is maximal. (The maximal fine might combination), and the rule of liability (strict or fault- be interpreted as the wealth of an individual.) The based). rationale for this conclusion is that fines are socially costless to impose, whereas imprisonment is socially costly, so deterrence should be achieved through the 2. Optimal Enforcement Gi
en the Probability of cheaper form of sanction first. This point is noted by Bentham (1789, p. 183) and Becker (1968, p. 193); see Detection also Polinsky and Shavell (1984). We consider here optimal enforcement given the assumption that the probability of detection is fixed (the probability will be treated as a policy instrument 2.2 Fault-based Liability in the next section). Thus, we ask about the optimal form and level of sanctions under strict and fault- Assume again that fines are the form of liability. Then based liability, and about how the two liability rules the same formula for the fine that we said was optimal compare. under strict liability—namely, h\p, the harm divided by the probability of detection—will lead to com- pliance with the fault standard (assuming that the fault standard is optimally selected). 2.1 Strict Liability If individuals are risk averse, they are deterred more Assume initially that fines are the form of sanction and easily than if they are risk neutral, so the fine does not that individuals are risk neutral. Then the optimal fine need to be as high to induce compliance with the fault is the harm h divided by the probability of detection p, standard. Moreover, assuming that compliance that is, h\p; for then the expected fine equals the harm occurs, no one actually is sanctioned because no one is (observe that p(h\p) l h). If, for example, the harm is found at fault (provided that there are no mistakes). $1,000 and the probability of detection is 25 percent, Thus, fault-based liability has the attractive feature then the optimal fine is $4,000, and the expected fine is that it can accomplish desired deterrence of harm- $1,000. This fine is optimal because, when the expected creating conduct without imposing risk on risk-averse fine equals the harm, an individual will commit a individuals (Shavell 1982).

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Next, consider imprisonment as the sanction; see to 10 percent. Then the expected fine remains equal to Shavell (1987a). Here, for essentially the reasons given $1,000, so that deterrence is maintained, but expendi- in the case of fines, any sanction above a threshold tures on enforcement are reduced significantly, imply- level will ensure compliance with the fault standard, ing that social welfare rises. This process can be and the minimum sanction necessary to induce com- continued, and social welfare augmented, whenever pliance is higher the lower is the probability of the fine is below the maximal level fm. Becker (1968) detection. Also (Shavell 1985), fault-based liability can suggested this result; Carr-Hill and Stern (1979, accomplish deterrence without the actual imposition pp. 280–309) and Polinsky and Shavell (1979) note it of costly imprisonment sanctions. explicitly. Finally, consider the joint use of fines and im- The optimal probability is low in the sense that there prisonment. In this case, it does not matter what the is some underdeterrence; that is, the optimal p is such combination of sanctions is, provided that the sanc- that the expected fine pfm is less than the harm h. tions achieve compliance with the fault standard. The reason for this result is that if pfm equals h, behavior will be ideal, meaning that the individuals who are just deterred obtain gains essentially equal to the harm. These are the individuals who would be led 2.3 Comparison of Liability Rules to commit the harmful act if p were lowered slightly. Because sanctions are not imposed under fault-based Lowering p will be socially beneficial because these liability (in the absence of mistakes), this form of individuals cause no net social losses (their gains liability has an advantage over strict liability when the essentially equal the harm), but reducing p saves sanction is a fine and individuals are risk-averse, or enforcement costs. when the sanction is imprisonment. However, fault- If individuals are risk averse, the optimal fine based liability is more difficult to administer. Namely, generally is less than maximal, as first shown in to apply fault-based liability, the enforcement auth- Polinsky and Shavell (1979) (and elaborated upon in ority must have more information than under strict Kaplow 1992). This is because the use of a very high liability: it must be able to calculate optimal behavior fine would impose a substantial risk-bearing cost on to determine the fault standard and it must ascertain individuals who commit the harmful act. whether the fault standard was met. Under strict Next, assume that the sanction is imprisonment and liability, the authority need only ascertain harm. that individuals are risk neutral in imprisonment, that (Moreover, for reasons we discuss in Sect. 6 below, is, the disutility of imprisonment is the same for each strict liability encourages better decisions by injurers additional year. Then the optimal imprisonment term regarding their level of participation in harm-creating is maximal. The reasoning behind this result parallels activities.) that used to show that the optimal fine is maximal when individuals are risk neutral in fines. Specifically, if the imprisonment term is raised and the probability of detection lowered so as to keep the expected 3. Optimal Enforcement Including the Probability sanction constant, neither individual behavior nor the of Detection costs of imposing imprisonment are affected (by construction, the expected prison term is the same), We now consider the optimal system of enforcement but enforcement expenditures fall. when expenditures on enforcement, and hence the Suppose instead that individuals are risk averse in probability of detection, are allowed to vary. Con- imprisonment. In other words, the disutility of each sideration of this issue originated with Becker (1968). year of imprisonment grows with the number of years in prison, perhaps because imprisonment becomes increasingly difficult to tolerate. In this case there is a stronger argument for setting the imprisonment sanc- 3.1 Strict Liability tion maximally than when individuals are risk neutral Assume first that the sanction is a fine and that (Polinsky and Shavell 1999). This is because, when the individuals are risk neutral. Then the optimal level of imprisonment term is raised, the probability of de- the fine is maximal and the optimal probability is low tection can be lowered even more than in the risk- (in a sense to be described). The basic explanation for neutral case without reducing deterrence. Thus, not this conclusion is that if the fine were not maximal, only are there greater savings in enforcement expendi- society could save enforcement costs by simultan- tures, but also the social costs of imposing impris- eously raising the fine and lowering the probability onment sanctions decline because the expected prison without affecting the level of deterrence. Suppose, for term falls. example, that the fine initially is $4,000 and that the Last, suppose that individuals are risk pre- probability of detection is 25 percent. Now raise the ferring in imprisonment, that is, the disutility of fine to $10,000, presuming that the maximal fine is at each year of imprisonment falls with the number of least this high, and lower the probability of detection years in prison. This assumption seems particularly

8512 Law: Economics of its Public Enforcement important: the first years of imprisonment may create Essentially all that we have said above applies in a special disutility, due to brutalization of the prisoner, straightforward way when harms are accidental. If or due to the stigma effect of having been imprisoned parties are risk-neutral, sanctions are monetary, and at all. Additionally, the fact that individuals discount the expected sanction equals harm, then induced the future disutility of imprisonment makes earlier behavior will be socially optimal; further, the optimal years of imprisonment more important than later magnitude of sanctions is maximal if individuals are ones. If individuals are risk preferring in imprison- risk neutral because this allows enforcement costs to ment, the optimal sanction may be less than maximal be saved; and so forth. (Polinsky and Shavell 1999). In particular, the type of There is, however, an additional issue that arises argument used above does not necessarily apply. when harm is uncertain. A sanction can be imposed When the sanction is raised, the probability that either on the basis of the commission of a dangerous maintains deterrence cannot be lowered proportion- act that increases the chance of harm—storing chemi- ally, implying that the expected prison term rises. cals in a substandard tank—or on the basis of the Because the resulting increased cost of imposing actual occurrence of harm—only if the tank ruptures. imprisonment sanctions might exceed the savings in In principle, either approach can achieve optimal enforcement expenditures from lowering the prob- deterrence. If liability is based on the dangerous act, ability, the optimal prison term might not be maximal. the expected fine should equal the expected harm, When the probability of detection is set optimally, while if liability is based on actual harm, the expected together with the imprisonment term, underdeterrence fine should equal the actual harm. may well result, not only to save enforcement expendi- Several factors are relevant to the choice between tures, but also to reduce the costs of imposing act-based and harm-based sanctions (Shavell 1993). imprisonment sanctions. First, act-based sanctions need not be as high to accomplish a given level of deterrence (because ex- pected harm is less than actual harm), and thus are 3.2 Fault-based Liability more likely to be able to be paid. Second, because act- The least expensive way to accomplish compliance based sanctions can be lower, they tend to be pref- with the fault standard is to use the highest possible erable when parties are risk averse. Third, act-based sanction and, given this sanction, the lowest prob- and harm-based sanctions may differ in the ease with ability of detection that deters individuals who would which they can be applied. Act-based sanctions may be at fault. The reason is that, if all individuals who be simpler to impose (it might be less difficult to would be at fault are deterred, the only cost incurred is determine whether an oil shipper properly maintains associated with the setting of the probability; this cost its vessels’ holding tanks than to detect whether one of is minimized by using the maximal sanction and a the vessels leaked oil into the ocean); or harm-based correspondingly low probability. This is true regard- sanctions may be easier to impose (a driver who causes less of whether the sanction is a fine or imprisonment harm might be caught without difficulty, but not one and regardless of individuals’ attitudes toward the risk who speeds). Fourth, it may be hard to calculate the of fines or of imprisonment. expected harm due to an act, but relatively easy to ascertain the actual harm if it eventuates, thereby favoring harm-based liability. 3.3 Comparison of Liability Rules As we emphasized earlier, under fault-based liability 5. Costs of Imposing Fines sanctions are not actually imposed (in the absence of Now suppose that there are costs borne by enforce- mistakes), which often is an advantage over strict ment authorities in imposing fines. Our principal liability. However, this advantage of fault-based liab- observation is that such costs should raise the level of ility would have to be weighed against the disadvan- the fine. To see why, suppose for simplicity that the tages of this rule that we mentioned at the end of Sect. probability of detection is fixed, that liability is strict, 2. and that individuals are risk neutral. In this setting, recall from Sect. 2 that the optimal fine is h\p, the 4. Accidental Harms harm divided by the probability of detection. Now let there be a public cost k of imposing a fine. The optimal Until now, we have assumed that individuals decide fine then becomes h\pjk; in other words, the cost k whether or not to commit acts that cause harm with should be added to the fine that would otherwise be certainty, that is, they decide whether or not to cause desirable (Becker 1968, p. 192, Polinsky and Shavell intentional harms. In many circumstances, however, 1992). The intuition behind this result is that, if an harms are accidental—they occur only with a prob- individual commits a harmful act, he causes society to ability. For instance, if a firm stores toxic chemicals in bear not only the immediate harm h, but also, with a substandard tank, the firm only creates the prob- probability p, the cost k of imposing the fine—that is, ability of a harmful spill. his act results in an expected total social cost of hjpk.

8513 Law: Economics of its Public Enforcement

If the fine is h\pjk, the individual’s expected fine is Alternatively, an individual who should not be found p[(h\p)jk] l hjpk, leading him to commit the harm- liable might mistakenly be found liable—a Type II ful act if and only if his gain exceeds the expected total error. For an individual who has been detected, let the ε ε social cost of the act. Hence, he will behave in a probabilities of these errors be " and #, respectively. socially appropriate way. Given the probability of detection p and the chances of Type I and Type II errors, an individual will com- 6. Le
el of Acti
ity mit the wrongful act if and only if his gain g net of his expected fine if they do commit it exceeds his We have been assuming that the sole decision that an expected fine if they do not commit it, namely, individual makes is whether to act in a way that causes when gkp(1kε )f
kpε f, or, equivalently, when
kε kε " # harm when engaging in some activity. In many g (1 " #)pf. contexts, however, an individual also makes a choice The first point to note is that, as emphasized in Png about his activity level—that is, whether to engage in (1986), both types of error reduce deterrence: the term kε kε ε ε that activity, or, more generally, at what level to do so. (1 " #)pf is declining in both " and #. The first For example, besides deciding how to behave when type of error diminishes deterrence because it lowers driving (whether to exercise care in changing lanes), an the expected fine if an individual violates the law. The individual also chooses how many miles to drive; the second type of error, mistaken liability, also lowers number of miles driven is the individual’s level of deterrence because it reduces the difference between activity. the expected fine from violating the law and not The socially optimal activity level is such that the violating it—in effect, making a violation less costly to individual’s marginal utility from engaging in the the individual. activity just equals the marginal expected harm caused Because mistakes dilute deterrence, they tend to by the activity. Thus, the optimal number of miles reduce social welfare. Specifically, to achieve any level driven is the level at which the marginal utility of of deterrence, the probability p must be higher to offset driving an extra mile just equals the marginal expected the effect of errors. harm per mile driven. If individuals are risk averse, the possibility of Will parties’ choices about their activity levels be mistakes may increase the desirability of lowering the socially correct under the two major forms of liability? fine because, due to Type II errors, individuals who do The answer is that under strict liability, their choices not violate the law are subject to the risk of having to about activity levels will be correct, but under fault- pay a fine (Block and Sidak 1980). based liability, they generally will participate in ac- When liability is based on fault, an important tivities to a socially excessive extent. Under strict implication of mistake is that some individuals will liability, parties will choose the optimal level of activity bear sanctions even if they comply with the fault because they will pay for all harm done. Under fault- standard, tending to make fault-based liability operate based liability, however, parties generally do not pay like strict liability. Moreover, as stressed by Craswell for the harm they cause because, as we have discussed, and Calfee (1986), individuals will often have a motive they will tend to behave so as not to be found at fault. to take excessive precautions in order to reduce the Consequently, when deciding on their level of activity, chance of erroneously being found at fault. they will not take into account the harm that their participation in the activity causes, and therefore they will participate too much. The interpretation of the preceding points in re- 8. General Enforcement lation to firms is that under strict liability, the product price will reflect the expected harm caused by pro- In many settings, enforcement may be said to be duction. Hence, the amount purchased, and thus the general in the sense that several different types of level of production, will tend to be socially optimal. violations will be detected by an enforcement agent’s However, under fault-based liability, the product price activity. For example, a police officer waiting at the will not reflect harm, but only the cost of precautions; roadside may notice a driver who litters as well as one thus, the amount sold, and the level of production, will who goes through a red light or who speeds. To be excessive. investigate such situations, suppose that a single The tendency of parties to choose an excessive level probability of detection applies uniformly to all of activity under fault-based liability, but not under harmful acts, regardless of the magnitude of the harm. strict liability, was first emphasized in Shavell (1980) When enforcement is general in this sense, the and Polinsky (1980). optimal sanction rises with the severity of the harm and is maximal only for relatively high harms; this 7. Mistakes point was first made in Shavell (1991) (Mookherjee and Png 1992 is closely related). Suppose, for example, An individual who should be found liable might that liability is strict, the sanction is a fine, and injurers mistakenly not be found liable—a Type I error. are risk neutral. Let f(h) be the fine given harm h.

8514 Law: Economics of its Public Enforcement

Then, for any given general probability of detection p, be the natural presumption, the parties can reallocate the optimal fine schedule is h\p, provided that h\p is the sanction through their own contract. The al- feasible; otherwise the optimal fine is maximal. This location of the sanction would matter, however, if it schedule is optimal given p because it implies that the would allow the parties to reduce their total burden, expected fine equals harm, thereby inducing ideal for example, if the agent is unable to pay a fine because behavior, whenever that is possible. The result that, his assets are less than the fine; see Sykes (1981) and when enforcement is general, sanctions should rise Kornhauser (1982). Then, the fine should be imposed with the severity of harm up to a maximum also holds on the principal. if the sanction is imprisonment and if liability is fault- The imposition of imprisonment sanctions on based. agents may be desirable when their assets are less than the harm that they can cause; see Polinsky and Shavell (1993). Because an agent’s assets are limited, the 9. Marginal Deterrence principal may be unable to control him adequately through use of contractually determined penalties, In many circumstances, a person may consider which which can only be monetary. It may be socially of several harmful acts to commit, for example, valuable to use the threat of personal criminal liability whether to release only a small amount of a pollutant and a jail sentence to remedy this problem. into a river or a large amount. In such contexts, the threat of sanctions influences which harmful acts individuals choose to commit. Deterrence of a more 11. Settlements harmful act because its sanction exceeds that for a less We consider here how settlements affect deterrence harmful act is sometimes referred to as marginal and the optimal system of public enforcement, and deterrence (apparently so named by Stigler 1970). whether settlements are socially desirable. Other things being equal, as observed by Beccaria There are two general reasons why parties might (1767, p. 32) and Bentham (1789, p. 171), it is socially prefer an out-of-court settlement to a trial (see desirable that enforcement policy creates marginal generally Cooter and Rubinfeld 1989, and regarding deterrence, so that law violators have a reason to settlement in a criminal context, see, for example, moderate the amount of harm they cause. This Reinganum 1988 and Miceli 1996). First, a trial is suggests that sanctions should rise with the magnitude costly in terms of time and\or money. Second, of harm and, therefore, that sanctions generally should settlements eliminate the risks inherent in the trial not be maximal. Note that marginal deterrence also outcome. For these reasons, settlement tends to be can be promoted by increasing the probability of de- socially valuable. tection for more severe harms. For formal analyses But a complicating factor is that settlements dilute of marginal deterrence, see Shavell (1992), Wilde deterrence: for if injurers desire to settle, it must be (1992), and Mookherjee and Png (1994). because the expected disutility of sanctions is lowered for them (see generally Polinsky and Rubinfeld 1988). The state may be able to offset this effect by increasing 10. Principal–Agent Relationship the level of sanctions; if so, settlements are socially desirable for the reasons mentioned in the previous Although we have assumed that an injurer is a single paragraph. actor, injurers often are more appropriately charac- terized as collective entities, and specifically as a principal and the principal’s agent. For example, the 12. Self-reporting principal could be a firm and the agent an employee. When harm is caused by the agent of a principal, We have assumed that individuals are subject to many of our prior conclusions are not fundamentally sanctions only if they are detected by an enforcement altered; they simply carry over to the sanctioning of agent, but in fact parties sometimes disclose their own principals. Notably, if a risk-neutral principal faces an violations to enforcement authorities. For example, expected fine equal to harm done, he will in effect be in firms often report violations of environmental and the same position vis-a'-vis his agent as society is vis-a'- safety regulations. There are two basic reasons why vis a single violator of law (see Newman and Wright self-reporting is socially advantageous; see Kaplow 1990 on a closely related point). Consequently, the and Shavell (1994b). First, self-reporting reduces principal will behave socially optimally in controlling enforcement costs because the enforcement authority his agent, and in particular will contract with him and does not have to identify and prove who the violator monitor him in ways that will give the agent socially was. Second, self-reporting reduces risk. For example, appropriate incentives to reduce harm (but see Arlen drivers bear less risk because they know that if they 1994). cause an accident, they can report this to the police The allocation of a financial sanction between the and suffer a lower and certain sanction, rather than principal and the agent would not matter if, as would face a substantially higher sanction (for hit-and-run

8515 Law: Economics of its Public Enforcement driving) imposed only with some probability. Self- Becker G S 1968 Crime and punishment: An economic ap- reporting can be induced by lowering the sanction for proach. Journal of Political Economy 76: 169–217 individuals who disclose their own infractions. Al- Bentham J 1789\1973 An introduction to the principles of though this will tend to reduce deterrence, the reward morals and legislation. In: Bentham J (ed.) The Utilitarians. for self-reporting can be made small enough that Anchor Books, Garden City, New York deterrence is only negligibly reduced. Block M K, Sidak J G 1980 The cost of antitrust deterrence: Why not hang a price fixer now and then? Georgetown Law Journal 68: 1131–39 Carr-Hill R A, Stern N H 1979 Crime, the Police and Criminal 13. Repeat Offenders Statistics: An Analysis of Official Statistics for England and Wales Using Econometric Methods. Academic Press, London In practice, the law often sanctions repeat offenders Cooter R D, Rubinfeld D L 1989 Economic analysis of legal more severely than first-time offenders. This may be disputes and their resolution. Journal of Economic Literature beneficial for two reasons. First, as developed in 27: 1067–97 Polinsky and Shavell (1998), raising the sanction for Craswell R, Calfee J E 1986 Deterrence and uncertain legal repeat offenders may create additional deterrence: if standards. Journal of Law, Economics, and Organization 2: getting caught violating the law implies not only an 279–303 immediate sanction, but also a higher sanction for any Kaplow L 1992 The optimal probability and magnitude of fines future violation, an individual will be more deterred for acts that definitely are undesirable. International Re
iew of from committing a violation presently. Second, as Law and Economics 12: 3–11 studied, for example, in Rubinstein (1979) and Kaplow L, Shavell S 1994 Optimal law enforcement with self- Polinsky and Rubinfeld (1991), making sanctions reporting of behavior. Journal of Political Economy 102: depends on offense history and allows society to take 583–606 advantage of information about the propensity of Kornhauser L A 1982 An economic analysis of the choice individuals to commit offenses: individuals with between enterprise and personal liability for accidents. Cali- fornian Law Re
iew 70: 1345–92 offense histories may be more likely than average to Miceli T J 1996 Plea bargaining and deterrence: An institutional commit future violations, which might make it de- approach. European Journal of Law and Economics 3: 249–64 sirable for purposes of deterrence to impose higher Montesquieu C 1748\1977 The Spirit of the Laws. University of sanctions on them. It also may be desirable to California Press, Berkeley, CA incapacitate such individuals by imprisoning them (see Mookherjee D, Png I P L 1992 Monitoring vis-a'-vis investi- the next section). gation in enforcement of law. American Economic Re
iew 82: 556–65 Mookherjee D, Png I P L 1994 Marginal deterrence in en- 102 14. Incapacitation forcement of law. Journal of Political Economy : 1039–66 Newman H A, Wright D W 1990 Strict liability in a principal- We have focused on the use of sanctions to reduce agent model. International Re
iew of Law and Economics 10: harm by deterring individuals from causing harm. 219–31 However, an entirely different way to reduce harm is Png I P L 1986 Optimal subsidies and damages in the presence of by incapacitating individuals so that they cannot cause judicial error. International Re
iew of Law and Economics 6: harm. Imprisonment is the primary incapacitative 101–5 Polinsky A M 1980 Strict liability vs. negligence in a market sanction; on the economic theory of incapacitation,
70 see Shavell (1987b). setting. American Economic Re iew : 363–7 If the sole function of sanctions were to incapacitate, Polinsky A M, Rubinfeld D L 1988 The deterrent effects of settlements and trials. International Re
iew of Law and the optimal sanction would be determined by compar- Economics 8: 109–16 ing the expected harm, net of gains, an offender would Polinsky A M, Rubinfeld D L 1991 A model of optimal fines for cause if not in prison to the private and public costs of repeat offenders. Journal of Public Economics 46: 291–306 imprisonment. Jail should only be used to incapacitate Polinsky A M, Shavell S 1979 The optimal tradeoff between the individuals whose net harm is relatively high. probability and magnitude of fines. American Economic Re
iew 69: 880–91 See also: Crime: Sociological Aspects; Crime, Soci- Polinsky A M, Shavell S 1984 The optimal use of fines and ology of; Deterrence; Law and Economics; Law, imprisonment. Journal of Public Economics 24: 89–99 Sociology of; Norms Polinsky A M, Shavell S 1992 Enforcement costs and the optimal magnitude and probability of fines. Journal of Law and Economics 35: 133–48 Polinsky A M, Shavell S 1993 Should employees be subject to Bibliography fines and imprisonment given the existence of corporate Arlen J A 1994 The potentially perverse effects of corporate liability? International Re
iew of Law and Economics 13: criminal liability. Journal of Legal Studies 23: 833–67 239–57 Beccaria C 1995 [1767] On Crimes and Punishments, and Other Polinsky A M, Shavell S 1998 On offense history and the theory Writings. In: Bellamy R (ed.) [trans. Davies R et al.] of deterrence. International Re
iew of Law and Economics 18: Cambridge University Press, New York 305–24

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Polinsky A M, Shavell S 1999 On the disutility and discounting twentieth century. The ‘Cravath System’ consists of of imprisonment and the theory of deterrence. Journal of four interrelated practices. First, lawyers, typically 28 Legal Studies : 1–16 called ‘associates,’ are hired directly out of law school, Polinsky A M, Shavell S 2000 The economic theory of public paid a fixed salary, and required to work exclusively enforcement of law. Journal of Economic Literature 38: 45–76 Reinganum J F 1988 Plea bargaining and prosecutorial dis- for the firm. Second, these new recruits are hired for a cretion. American Economic Re
iew 78: 713–28 probationary period during which they are trained by Rubinstein A 1979 An optimal conviction policy for offenses the senior lawyers in the firm, called ‘partners,’ to that may have been committed by accident. In: Brams S J, handle matters of increasing responsibility for the Schotter A, Schwo$diauer G (eds.) Applied Game Theory. firm’s clients. Third, at the end of the probationary Physica-Verlag, Wu%rzburg, Germany, pp. 406–13 period, the partners select only the best associates for Shavell S 1980 Strict liability versus negligence. Journal of Legal promotion to partnership, requiring those who are not 9 Studies : 1–25 selected to leave the firm. Finally, partners share in Shavell S 1982 On liability and insurance. Bell Journal of both the firms’ profits and management, including, Economics 13: 120–32 Shavell S 1985 Criminal law and the optimal use of nonmonetary most importantly, the selection of new partners sanctions as a deterrent. Columbia Law Re
iew 85: 1232–62 (Swaine 1946). Shavell S 1987a The optimal use of nonmonetary sanctions as a Firms patterned on the Cravath model grew dra- deterrent. American Economic Re
iew 77: 584–92 matically in size and geographic scope from 1960 to Shavell S 1987b A model of optimal incapacitation. American the end of the twentieth century. In 1960, there were 38 Economic Re
iew 77: 107–10 US law firms with more than 50 lawyers, with the Shavell S 1991 Specific versus general enforcement of law. largest consisting of 125 attorneys (Smigel 1969). 99 Journal of Political Economy : 1088–1108 Forty years later, there were 250 law firms in the USA Shavell S 1992 A note on marginal deterrence. International with more than 100 lawyers, with several exceeding Re
iew of Law and Economics 12: 345–55 Shavell S 1993 The optimal structure of law enforcement. 1,000 attorneys (National Law Journal 1999). In 1960, Journal of Law and Economics 36: 255–87 virtually all firms consisted of a single office. By 2000, Stigler G J 1970 The optimum enforcement of laws. Journal of most large firms had multiple offices, with many Political Economy 78: 526–36 practicing in several jurisdictions. In 1960, only a Sykes A O 1981 An efficiency analysis of vicarious liability under handful of US firms had foreign offices. Forty years the law of agency. Yale Law Journal 91: 168–206 later, foreign offices of the top 250 American law firms Wilde L L 1992 Criminal choice, nonmonetary sanctions, and were located in 72 foreign cities and employed almost marginal deterrence: A normative analysis. International Re-
12 5,000 US and foreign lawyers. iew of Law and Economics : 333–44 During this same period, ‘megafirms’ (Galanter and Palay 1991) patterned on the Cravath model A. M. Polinsky and S. Shavell began to emerge in the UK, Europe, Asia, and other Copyright # 2001 Elsevier Science Ltd. commercial centers. England was the first to develop All rights reserved. comparable firms to those found in the USA (Flood 1989). By the end of the century, these firms were Law Firms among the largest and most globalized firms in the world. Lawyers in the Netherlands (Blankenburg and The overwhelming majority of lawyers in private Bruinsma 1994), Germany (Gerber 1999), Spain practice in most countries around the world practice (Stewart 1991), Canada (Arthurs et al. 1988), Australia alone or in very small and relatively informal group- (Galanter and Palay 1991), China (Alford 1995), and ings (Abel and Lewis 1988–95). Beginning in the Venezuala (Perez Perdomo 1988) have also developed 1960s, however, there has been a steady trend for their own versions of the large law firm. Although the lawyers who represent business interests to practice in structure and culture of these firms reflect important larger and more bureaucratically organized law firms. national and regional differences (Trubek et al. 1994), Although lawyers for individuals have also attempted the Cravath System continues to exert a powerful to organize larger firms, these efforts have been largely influence on the development of large law firms around unsuccessful (Van Hoy 1997). As a result, at the end of the world. As a result, theories about how US law the twentieth century the large corporate law firm is firms are structured are likely to have important the dominant organizational model for private prac- implications for firms in other countries that are titioners. patterned on the American model.

2. Explaining Law Firm Growth 1. The E
olution of the Large Law Firm: From Cra
athism to Megalawyering Theorists offer three related explanations for law firm growth: tournament theory, portfolio theory, and The American law firm of Cravath, Swaine, and Moore demand theory. Although each theory highlights is widely credited with creating the blueprint for the important truths, none captures the dynamic inter- modern large law firm in the first decade of the action between markets, institutions, and lawyer

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International Encyclopedia of the Social & Behavioral Sciences ISBN: 0-08-043076-7