Punishment and Willingness to Pay

Matthew S. Levine, Punishment and Willingness to Pay, 40 Gonz. L. Rev. 329 (2005).

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In most aspects of modern law, we consider it a good thing that an actor is prepared to make good on his obligations and pay the costs of his actions. This proposition seems so intuitive that it is surprising to find some exceptions, cases in which an actor’s willingness to pay for his actions counts as a strike against him, or at least complicates society’s attitudes towards his behavior. In this article, I point to several such cases and argue that they suggest the need for some inquiry into the meaning of ex ante willingness to pay for one’s violations of social or legal norms. This inquiry can deepen our understanding of the purposes of and justifications for punishment, and complicate the relationships between law, punishment, and autonomy.

Part II of this article lays out the problem, using three examples. Part III sets out the economic efficiency approach to tort and criminal law while arguing that this approach cannot account for important intuitions and leading cases about the impact of ex ante willingness to pay on our judgments of guilt. Next, Part IV sets out another possible approach to tort and crime, what we might call a Hegelian “rightness” approach, and shows that it, too, does not fully cover the territory. Part V sets out some historical developments that offer insights into modern reactions to ex ante willingness to pay. Finally, Part VI lays out important themes in the approach to willingness to pay and suggests that they provide a way to understand our reactions that goes beyond standard theories of deterrence and retribution….Read More

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