I’ve been blogging over the years quite a bit about a problem I call “criminalizing agency costs,” which is a piece of the general problem of over-criminalization. In fact, this problem was a big reason for my getting started in blogging almost seven years ago.
Significant questions have been raised concerning the efficiency of criminalizing agency costs and the problems of excessive prosecution of crimes committed by corporate agents. This paper provides a new perspective on these questions by analyzing them from the perspective of agency cost theory. It shows that there are close analogies between the agency costs associated with prosecutors in corporate crime cases and those of the agents being prosecuted. The important difference between the two contexts is that prosecutors are not subject to many of the standard mechanisms for dealing with corporate agency costs. An implication of this analysis is that society must decide if prosecuting corporate agents is worth incurring the agency costs of prosecutors.
It’s a simple concept: If agency costs are a big enough deal to criminalize, we should worry about the agency costs on the prosecutors’ side as well.
Read it while it’s hot.