Boston University School of Law
In this Paper, I propose the following two step procedure to explain both the inclusion and exclusion of criminal utility. As a first step, I posit a full compliance utility function. This utility function includes all utilities for all activities and incorporates an assumption that all members of society will forego prohibited activities. Aa s preliminary matter, I will also presuppose common information and shared values within the community. I suggest that maximization of full compliance social utility determines what society prohibits. As a second step, I strip the social utility function of the utility from prohibited activities and drop the assumption of full compliance. I suggest that maximization of this stripped social utility function determines degrees of deterrence and enforcement.
Stephen G. Marks,
Utility and Community: Musings on the Tort/Crime Distinction
Boston University Law Review
Available at: https://scholarship.law.bu.edu/faculty_scholarship/2903