Mens rea and other criminal inefficiencies

Some economists have argued, however, that the usual presumption that voluntary exchanges are efficient does not hold for blackmail, since permitting blackmail encourages potential blackmailers to engage in unproductive preparatory activities (digging up information that will never be used), and potential victims to spend money and time to protect themselves against being blackmailed. Richard A. Posner,Blackmail, Privacy, and Freedom of Contract, 141 U. Pa. L. Rev. 1817, 1818 (1993); Douglas H. Ginsburg & Paul Shechtman,Blackmail: An Economic Analysis of the Law, 141 U. Pa. L. Rev. 1849 (1993). Leo Katz,Ill-Gotten Gains 145 (1996). Id. at 203. Here I take it Katz means "utilitarian" to generalize to other forms of consequentialism as well. In an article in which he attempts to offer an economic rationale for basic principles of criminal law, Posner himself notes that economic analysis of criminal law has been concerned mostly with the optimization of deterrence, and not with substantive criminal law doctrines. Richard A. Posner,An Economic Theory of the Criminal Law, 85 Colum. L. Rev. 1193, 1193 (1985). Despite Posner’s own valiant efforts, little has changed since the time of his writing. See Alvin K. Klevorick,On the Economic Theory of Crime, inNomos XXVII: Criminal Justice 289, 290 (J. Roland Pennock & John W. Chapman eds., 1984) (arguing that economic literature on crime "has not entered the mainstream of legal scholarship" and stands in contrast to economic literature on tort law, "which has genuinely engaged the interest of torts scholars and teachers"). Richard A. Posner, Book Review, 215 New Republic 38, 40 (1996). See Louis Kaplow & Steven Shavell,Property Rules versus Liability Rules: An Economic Analysis, 109 Harv. L. Rev. 713 (1996). As economists have been quick to point out, this would set the penalty in many cases well above the criminal’s ability to pay, suggesting that incarceration may be necessary to achieve the right level of deterrence. Posner,supra note 4, at 1195. See David D. Friedman,Should the Characteristics of Victims and Criminals Count?: Payne v. Tennessee and Two Views of Efficient Punishment, 34 B.C. L. Rev. 731 (1993). One can think of this as replacing a liability rule with a property rule.See Guido Calabresi & Douglas Melamed,Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 Harv. L. Rev. 1089 (1972). Posner,supra note 6, at 39–40. Katz,supra note 2, at 37. Katz,supra note 2, at 151. Model Penal Code § 2.02 (1985). See, e.g., N.Y. Penal Law § 125.25 (McKinney 1988); Model Penal Code § 210 (1985). Katz,supra note 2, at 37. See R.A. Duff,Intention, Agency, and Criminal Liability § 8.3 (1990). See also Claire Finkelstein,The Irrelevance of the Intended to Prima Facie Culpability: Comment on Moore, 76 B.U. L. Rev 335 (1996). G.E.M. Anscombe,Modern Moral Philosophy, in 3The Collected Philosophical Papers of G.E.M. Anscombe 26 (1981). 1947 K.B. 997 (Crim. App.). By some people’s lights, the "trolley problem" is one such case. Judith Jarvis Thomson,The Trolley Problem, inRights, Restitution, and Risk 94 (William Parent ed., 1986). Katz,supra note 2, at 263.