Title

Toward a New Theory of Notice and Deterrence

Abstract

This article sets forth a new model of “notice” and deterrence that helps explain some long-standing contradictions in the literature on deterrence. Nearly all the work in the area of criminal law and deterrence has included an assumption that would-be offenders know the laws and the threatened sanctions, and therefore adjust their behavior in light of these disincentives. The fact that most people seem to be ignorant of the exact boundaries of the rules, and ignorant of the sanctions, presents an enormous conceptual problem for the classic model of deterrence. This new model presents an alternative mechanism for deterrence based on the distinction between risk and uncertainty that is frequently discussed in economic literature: in a nutshell, people “play it safe” or steer clear of violating the law more when there is some uncertainty about the parameters of the law and the sanctions. Economic understandings of aversion to uncertainty help explain why deterrence works as well as it does in an environment where comprehensive legal knowledge is generally impossible. In addition, this article demonstrates that public ignorance of the law or uncertainty is an unavoidable function of the verbal formulations used in modern statutes. The “notice requirement” does not ensure public awareness of the law (which the courts have never required in any actual sense), but rather sets limits on the range of prohibitions and sanctions confronting the citizenry, striking an optimal balance between under-deterrence and over-deterrence.

Disciplines

Criminal Law | Criminal Procedure | Economics | Law and Society | Legislation

Date of this Version

March 2004