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Ogus, Anthony --- "Criminal Law and Regulation" [2009] ELECD 456; in Garoupa, Nuno (ed), "Criminal Law and Economics" (Edward Elgar Publishing, 2009)

Book Title: Criminal Law and Economics

Editor(s): Garoupa, Nuno

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781847202758

Section: Chapter 3

Section Title: Criminal Law and Regulation

Author(s): Ogus, Anthony

Number of pages: 21

Extract:

3 Criminal law and regulation
Anthony Ogus1


1. Scope and focus of chapter
Few problems are encountered in delineating the scope of the criminal
law since, as a matter of legal definition, it is the law prescribing liability
for those offences which are prosecuted in the criminal justice system.
Characterising particular forms of undesirable conduct as `criminal' and
subjecting them to the processes of the criminal law is thus one way of
controlling such conduct.
`Regulation', in contrast, is not a legal term of art and its meaning varies
according to the discipline of the discourse and the context (Mitnick, 1980,
chapter 1). For the purposes of legal-economic analysis, it can be treated
as having the following characteristics (Ogus, 2004a, pp. 2­3): it is public
law, predominately enforced as well as formulated by an agency of the
state;2 and it aims to induce outcomes which would not be reached by
free market activity. It is therefore designed to overcome some perceived
instance of market failure. As such, it can be usefully classified as `eco-
nomic regulation' where there is inadequate competition in the relevant
market and `social regulation', which is used to correct externalities and
information asymmetry.
Now, of course, there are several regulatory methods of inducing indi-
viduals and firms to reach desired outcomes. Behaviour inconsistent with
the outcomes may be made the subject of a tax or charge. Or regulatees
may be required, as a matter of law, to refrain from such behaviour. The
obligation ...