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Bound print copies of George Mason School of Law’s working paper series on law and economics are available in the Law Library. The bound set often includes initial drafts of papers. Search Mason’s Classic Catalog to locate a working paper.

Recent Working Papers:


Antonin Scalia and the Dilemma of Constitutional Originalism

By Nelson Lund

ABSTRACT:

Antonin Scalia has had a very significant and healthy impact on the way people talk about American constitutional law. Before he took his seat on the Supreme Court, it was barely respectable to treat the Constitution, understood to mean what it meant to those who wrote and ratified it, as the law. Constitutional law was - as every sophisticated lawyer, jurist, and academic understood - whatever the courts said it was, and the written document had been superseded in significant part by a “living constitution” that reflected the progressive political agenda of the modern left. Thanks largely to Justice Scalia’s forceful and eloquent voice, originalism is now so respectable that even those who seek to move the law ever farther to the left frequently find it prudent to pose as expositors of the Constitution’s original meaning.  Scalia’s substantial effect on the terms of debate in constitutional law, however, is not likely to be matched by a comparable influence on the future of the law itself. His effort to alter the Supreme Court’s approach to constitutional adjudication faced serious obstacles that will continue to frustrate Justices - and observers like me - who share Scalia’s desire for a revival of respect for the written Constitution. Most obviously, political realities could easily prevent presidential appointments from producing a majority of like-minded Justices any time soon, if ever. There are, however, some more interesting obstacles that have deep historical roots. This essay explores those obstacles before considering two examples that suggest why Scalia’s originalism is unlikely to make a decisive contribution to the reformation in constitutional law that he sought.

Intellectual Property and Standard Setting

By Joshua Wright, Koren Wong-Ervin

ABSTRACT:

Standard setting has become increasingly important to the economy. Voluntary, open, and market driven standard setting promotes research and development investments in “best of generation” technologies that enable and accelerate follow on innovation, competition, and economic growth. Standard development organizations (SDOs) are private organizations that develop technical and other standards through a collaborative and consensus-driven process that balances the varied interests of industry participants, which include both producers and potential users of technology. SDOs provide a platform for industry scientists and engineers to come together and develop technical standards. Because standards may include technology that is the subject of intellectual property rights (IPRs) such as patents, SDOs historically have promoted widespread dissemination of standardized technologies through IPR Policies, which balance the rights of IPR holders with rights to access essential technology. Although SDO IPR Policies vary widely, many policies achieve this balance by seeking to have their members publicly declare any potential standard-essential patents (SEPs) (i.e., patents that are essential to practice a given standard) and to license them on “fair, reasonable, and nondiscriminatory” (FRAND) terms. Most SDOs clearly state that the purpose of the FRAND assurance is to both ensure access to the standardized technology and fairly compensate the contributors to the standard.

The issues and choices regarding specific IPR Policies are best left to individual SDOs and their members to decide, rather than government agencies. SDOs “vary widely in size, formality, organization and scope,” and therefore individual SDOs may need to adopt different approaches to meet the specific needs of their members. A government agency’s issuance of recommendations may unduly influence private SDOs and their members to adopt policies that might not otherwise gain consensus support within a particular SDO and that may not best meet the needs of that SDO, its members, and the public. This could occur because the SDO believes that failing to adopt the specified policy is not permitted or because failing to adopt the policy could subject the SDO and its members to other legal liabilities. Accordingly, the U.S. Antitrust Agencies have taken the position that they do “not advocate that SSOs [standard setting organizations or SDOs] adopt any specific disclosure or licensing policy, and the Agencies do not suggest that any specific disclosure or licensing policy is required.” 
 
 However, despite these statements, the U.S. Department of Justice’s Antitrust Division (DOJ) recently issued a Business Review Letter on the proposed amendments to the Institute of Electrical and Electronics Engineers, Incorporated’s (IEEE’s) IPR Policy. In the letter, the DOJ went well beyond its mission of providing a statement of its antitrust enforcement intentions with respect to the proposed amendments, and instead endorsed certain policy choices. Some of its preferred policies include provisions that essentially prohibit patent holders from seeking or enforcing injunctive relief on FRAND-assured SEPs, and provisions that essentially require component-level licensing; the latter is contrary to the long-standing industry practice of end-user device licensing. The IEEE’s controversial amendments were highly criticized by SEP holders and others on both procedural and substantive grounds. Recent econometric analysis reveals a biased treatment of substantive comments submitted to the IEEE by members opposed to the controversial revisions. Additional empirical evidence following the amendments shows a slowed rate of development for IEEE standards and numerous major SEP holders refusing to grant letters of assurance (i.e.,assurances to license under certain terms) under the new policy. 
 
 Another concerning development is the U.S. Federal Trade Commission’s (FTC’s) recent consent agreements with Bosch and Motorola Mobility/Google. The former prohibits the company from seeking or enforcing injunctive relief on FRAND-assured SEPs; the latter prohibits the companies from seeking injunctive relief on a worldwide basis except under certain circumstances. Following the FTC’s consent agreements, antitrust agencies around the world, including in Canada, China, Korea, and Japan, adopted similar approaches, namely creating competition law sanctions for seeking or enforcing injunctive relief against “willing licensees.” These developments represent a fundamental policy shift that threatens to disrupt the carefully balanced FRAND ecosystem without any evidence that the targeted conduct (namely “holdup” by patent holders) is a widespread or systemic problem that has led to higher prices, reduced output, or lower rates of innovation. Indeed, in contrast to the predictions of the theories that such injunctions will have anticompetitive effects, products that intensively use SEPs have seen robust innovation as well as falling prices and increased output when compared to industries that do not rely upon SEPs.

Rethinking Presidential Eligibility

By Eugene Mazo

ABSTRACT:

Throughout American history, several aspiring presidents have had their candidacies challenged for failing to meet the Constitution’s eligibility requirements. These challenges began in the 1880s with the dispute over Chester A. Arthur's eligibility, and they continued into the twentieth century. Recently, presidential eligibility challenges have become much more prominent. In addition to being contested in the court of public opinion, these challenges have recently been contested in the courts of law as well. Although none of these challenges have ever been successful, they have worked to sap presidential campaigns of valuable resources and have threatened the campaigns of several ambitious men. This Essay examines several famous presidential eligibility challenges. It looks at the historic challenges confronted by Chester A. Arthur, Charles Evans Hughes, Barry Goldwater, George Romney, Christian Herter, and Lowell Weicker, and at the more modern challenges faced by John McCain, Barack Obama, and Ted Cruz. The literature on presidential eligibility traditionally has focused on discerning the meaning of the the Constitution's Eligibility Clause, which enumerates the age, residency, and citizenship requirements that a U.S. president must satisfy before taking office. By contrast, very little of it examines how a challenge to a candidate's eligibility impacts a presidential campaign. Nor does the literature offer many solutions for what Congress can do to respond to these challenges. This Essay seeks to fill this gap. It also offers a modest proposal. It calls on Congress to pass legislation defining exactly who qualifies to be a natural born citizen or, in the alternative, to implement procedural rules that would expedite presidential eligibility challenges for review to the U.S. Supreme Court.

Federalism and the Roberts Court

By Ilya Somin

ABSTRACT:

The Roberts Court saw a number of important advances for judicial enforcement of federalism-based limits on congressional power, both in high-profile cases such as NFIB v. Sebelius, and lesser known ones. The extent of these gains is greater than many observers recognize. Much of this progress fits the conventional model of federalism as a left-right ideological issue on the Court, dividing liberal Democrats from conservative Republicans. But some noteworthy developments depart from this framework, and suggest a greater degree of openness to federalism among the liberal justices, and perhaps others on the left.

Extra-Jurisdictional Remedies Involving Patent Licensing

By Joshua Wright, Koren Wong-Ervin, Douglas Ginsburg, Bruce Kobayashi

ABSTRACT:

In the last several years, competition agencies around the world have imposed or considered imposing extra-jurisdictional remedies on patent holders, particularly owners of standard-essential patents (SEPs) upon which the patent holder has made a commitment to license on fair, reasonable, and non-discriminatory (FRAND) terms.  For example, in January 2013, the U.S. Federal Trade Commission (FTC) entered into a consent agreement with Motorola Mobility and its parent, Google, that, except in limited circumstances, prohibits the companies worldwide from seeking injunctive relief against infringers of any FRAND-assured SEP in its global portfolio.   Similarly, the Korea Fair Trade Commission and the Taiwan Fair Trade Commission are reportedly considering imposing worldwide restraints on Qualcomm’s enforcement of its global patent portfolio in order to remedy alleged competition violations involving the company’s patent licensing practices.  Imposing worldwide remedies can conflict with principles of international comity and result in significant substantive conflicts with the antitrust agencies of other countries given the wide variety of approaches taken globally on antitrust matters involving intellectual property rights (IPRs), particularly with respect to honoring an IPR holder’s core right to exclude.  This has the potential to produce significant negative effects on competition and welfare, particularly if conduct that is widely considered to be generally procompetitive is the object of the worldwide prohibition.  Even when attacking universally condemned activity such as price fixing, global remedies risk overdeterrence when national authorities do not coordinate to adjust the penalties they impose.  Moreover, as explained below, extra-jurisdictional remedies are likely unnecessary to resolve any alleged harm to consumers in the jurisdiction imposing them.  Each competition agency forgoing global remedies does not prevent competition law solutions to global harms, and is appropriate to mitigate the risk of overdeterrence.  Honoring principles of comity also can mitigate a race to the bottom in competition law enforcement by preventing the lowest common denominator approach to competition law remedies from governing across the board.  Indeed, some, including officials at the highest levels of the U.S. government, have raised concerns that foreign governments may be “using numerous mechanisms, including [antitrust laws] to lower the value of foreign-owned patents” in order to benefit those within their countries who implement foreign technology ; that is, the competition authority may be enforcing competition law not solely to protect their consumers from potentially anticompetitive licensing practices, but also to benefit local implementers or a “national champion” in a way that is inconsistent with the procompetitive goals of the competition laws of other jurisdictions.   While competition officials across the globe have emphatically denied such claims, imposing welfare reducing global remedies on patent licensing, in addition to reducing competition and welfare, will also draw increased criticism and threaten to harm an agency’s credibility with stakeholders, the international antitrust community, and the public.  This article discusses the various approaches taken thus far, as exemplified by four recent decisions: one by the FTC against Google/MMI; two by the European Commission (DG Comp) against Motorola and Samsung, respectively; and one by China’s National Development and Reform Commission (NDRC) against Qualcomm.  In contrast with the FTC’s investigation, the latter three limit remedies to the patent holder’s domestic practices in the licensing of their domestic patents (i.e., activity and patents within the territory of the investigating authority), illustrating nicely remedies that are consistent with principles of international comity. 

Federalism and the Rise of State Consumer Protection Law in the United States

By Joshua Wright

ABSTRACT:

Starting in the 1960s, individual states began to adopt and enforce Consumer Protection Acts (“CPAs”), the purpose of which was to supplement the FTC’s consumer protection authority to prohibit “unfair or deceptive acts or practices.” By 1981, each state had its own CPA. The proliferation of state CPAs provides a valuable opportunity to observe competitive federalism in action and to observe the potential effects of concurrent state and federal regulation. The purpose of this paper is to understand the role of state CPAs in the consumer protection landscape with an eye toward drawing lessons concerning whether state CPAs manifest the benefits of competitive federalism, embody a failure of this principle, or neither. After describing the dramatic rise and expansion of state CPAs, this paper focuses upon two empirical studies that cast significant doubt upon the failure of jurisdictional competition to constrain the adoption of state CPA features likely to result in net harm to consumers.

The FTC PAE Study: A Cautionary Tale About Making Unsupported Policy Recommendations

By Douglas Ginsburg, Joshua Wright

ABSTRACT:

In October 2016, the Federal Trade Commission released its long awaited case study examining the business practices of 22 Patent Assertion Entities (PAEs). One clear policy implication is that PAEs do not present an antitrust problem. While the study makes a number of interesting and potentially important factual findings, it makes four policy recommendations that simply are not substantiated by anything in the study. The FTC acknowledged that the limitations of its sample rendered it inappropriate to extrapolate its findings to PAEs as a whole. Curiously, however, in spite of that acknowledgement, FTC went on to make recommendations applicable to the entire population of PAEs. Because it is unclear whether the policy recommendations in the FTC’s PAE study would survive a cost-benefit test, and because they certainly cannot be substantiated based upon the PAE Study alone, we conclude the policy recommendations should be afforded little weight.

Disenfranchisement and Over-Incarceration

By Murat Mungan

ABSTRACT:

Disenfranchisement laws in many states prohibit convicted felons from voting. The removal of ex-convicts from the pool of eligible voters reduces the pressure politicians may otherwise face to protect the interests of this group. In particular, disenfranchisement laws may cause the political process to push the sentences for criminal offenses upwards. In this article, I construct a simple model with elected law enforcers who propose sentences to maximize their likelihood of election. I show, with the help of the median voter theorem, that even without disenfranchisement, elections typically generate over-incarceration, i.e. longer than optimal sentences. Disenfranchisement further widens the gap between the optimal sentence and the equilibrium sentence, and thereby exacerbates the problem of over-incarceration. Moreover, this result is valid even when voter turnout is negatively correlated with people's criminal tendencies, i.e. when criminals vote less frequently than non-criminals.

The Costs and Benefits of Antitrust Consents

By Douglas Ginsburg, Joshua Wright

ABSTRACT:

Over the last three decades, the United States Federal Trade Commission and the Antitrust Division of the Department of Justice have undergone a dramatic shift toward greater reliance upon consent decrees rather than litigation to resolve antitrust disputes.  As many national competition agencies examine the desirability of adopting a similar approach, we focus upon identifying and analyzing the costs and benefits associated with a marginal shift along the continuum from an enforcement model of agency behavior to a regulatory regime.  We rely upon the U.S. experience to substantiate our claim that the costs associated with such a marginal shift toward the regulatory model are often undereappreciated and discernable only in the long run, including the potential distortion of the development of substantive antitrust doctrine.  We acknowledge that consent decrees can and should be a part of the antitrust agency toolkit for resolving antitrust disputes.  We contend merely that a full accounting of the benefits and costs of consent decrees is necessary to inform this important strategic decision for competition agencies.

The Effect of Regulation on Broadband Markets: Evaluating the Empirical Evidence in the FCC’s 2015 “Open Internet” Order

By Thomas Hazlett, Joshua Wright

ABSTRACT:

In 2015, the Federal Communications Commission imposed common carriage regulation on broadband Internet service providers (ISPs) under Title II of the 1934 Communications Act. The action reversed what the FCC had, by 1999, called a “thirty-year tradition of ‘unregulating’ the data services market.” The premise for the regime shift included the FCC’s arguments that previous common carrier rules imposed by regulators had yielded economic gains. The Commission specifically noted market responses to (a) 2010 “net neutrality” rules (overturned by a federal court in 2014), (b) mobile licenses (AWS-3) auctioned by the FCC in January 2015, when Title II regulations were about to be imposed; (c) Title II regulation of mobile phones from 1994 to 2009; and (d) Title II rules applied to telephone carriers offering DSL services until 2005. Though the Court of Appeals for the D.C. Circuit recently upheld the Commission’s rules, it did so over Judge Williams’ well-reasoned dissent (United States Telecom Ass'n 2016, 700). Judge Williams was particularly critical of the FCC’s disregard for economic evidence. He strongly disagreed with the FCC’s conclusion that, “[a]s a factual matter, the regulatory status of broadband internet access service appears to have, at most, an indirect effect (along with many other factors) on investment." Specifically, he characterized support for the Commission's conclusion as “weak” and “superficial” This debate is far from settled, as industry participants will likely petition the Supreme Court for certiorari and lobby for legislative reform. This paper subjects the FCC’s data and interpretation to critical scrutiny and finds Judge Williams’ criticism warranted: Making adjustments for inflation or general economic trends eliminates the positive output effects asserted by the FCC. Moreover, contrary to the Commission’s assessment of the empirical evidence, mobile services and broadband markets have shown notable growth in response to deregulatory events reducing Title II requirements.

Putting Kelo in Perspective

By Ilya Somin

ABSTRACT:

Kelo v. City of New London was in line with precedent, and within the “mainstream” of legal thought. But that is not enough to justify it. Like many of the Supreme Court’s worst decisions, it highlights the ways in which the mainstream can go disastrously wrong. Going forward, the best way to rectify Kelo’s errors is to overrule it completely, rather than rely on half-measures, such as building on Justice Anthony Kennedy’s hard to interpret concurring opinion.

Comment of the Global Antitrust Institute, Antonin Scalia Law School, George Mason University, on the U.S. Antitrust Agencies’ Proposed Update of the Antitrust Guidelines for the Licensing of Intellectual Property

By Koren Wong-Ervin, Joshua Wright, Douglas Ginsburg, Bruce Kobayashi

ABSTRACT:

This comment is submitted to the U.S. Antitrust Agencies by the Global Antitrust Institute (GAI) at Scalia Law School, George Mason University on the Agencies' Proposed Update of the Antitrust Guidelines for the Licensing of Intellectual Property. The GAI Competition Advocacy Program provides a wide-range of recommendations to facilitate adoption of economically sound competition policy, including how to analyze conduct involving standard-essential patents.

Staying Agency Rules: Constitutional Structure and Rule of Law in the Administrative State

By Ronald Cass

ABSTRACT:

Today, administrative rules are far more numerous than the laws enacted by Congress, cover far more pages in the relevant legal codes, account for far more regulatory commands, and have profound effects on American economy and society. Although administrative rules can provide substantial public benefit, legal constraints on the scope of administrative authority and on the processes by which it is employed provide critical protections. Courts, when asked, can review the legality of these rules; courts also can stay rules’ effectiveness pending review, both preserving the status quo and reducing costs entailed by rules of questionable legality. Holding rules in abeyance until they can be reviewed frequently is the best—and at times the only—vehicle for guaranteeing a meaningful review. Given the vast reach of federal administrative regulation, the concentrated impact regulations often have on specific individuals and entities, and the frequent experience that staying rules’ effect is critical to limiting administrative adventurism and avoiding irreparable harm, canons of deference to both administrative and judicial discretion should be revisited. Greater attention to the harm from failure to stay questionable rules can protect rule-of-law values, preserve liberties that were central to our constitutional design, and provide space for serious evaluation of the rules’ consistency with law.

The Information-Forcing Dilemma in Damages Law

By Tun-Jen Chiang

ABSTRACT:

Courts assessing compensatory damages awards often lack adequate information to determine the value of a victim’s loss. A central reason for this problem, which the literature has thus far overlooked, is that courts face a dilemma when applying their standard information-forcing tool to the context of damages. Specifically, the standard method by which courts obtain information is through a burden of proof. In the context of assessing damages, this means a rule requiring plaintiffs to prove the value of a loss with precision. But courts will often face a situation where it is clear that the plaintiff has suffered a loss, but where the plaintiff cannot prove the exact amount of the loss. A court that strictly enforces the burden of proof would award zero damages in such a case, producing a harsh result. But a court that avoids this result by instead awarding its best guess at the correct amount — effectively forgiving the inadequacy of plaintiff’s proof — then undermines future incentives for plaintiffs to produce rigorous evidence.
The result of this dilemma is that courts oscillate between strict and forgiving approaches, causing much confusion. Explaining the dilemma helps alleviate the confusion and points to a solution. In principle, courts should require a party to produce damages evidence if, and only if, the party is the lower cost provider of that evidence, and the benefit of having the evidence outweighs the cost of collecting it. The messy legal standards for calculating damages in various fields can be understood as clumsy attempts by courts to arrive at this unifying principle. Interpreting the vague and messy doctrine in light of this “cheaper cost-effective producer” principle thus helps make damages law more coherent.

Gateway Crimes

By Murat Mungan

ABSTRACT:

Many who argue against the legalization of marijuana suggest that while its consumption may not be very harmful, marijuana indirectly causes significant social harm by acting as a “gateway drug,” a drug whose consumption facilitates the use of other, more harmful, drugs. This article presents a theory of “gateway crimes”, which, perhaps counterintuitively, implies that there are social gains to decriminalizing offenses that cause minor harms, including marijuana-related offenses. A typical gateway crime is an act which is punished lightly, but, because it is designated as a crime, being convicted for committing it leads one to be severely stigmatized. People who are stigmatized have less to lose by committing more serious crimes, and, therefore, the criminalization of these acts increases recidivism. Thus, punishing “gateway crimes” may generate greater costs than benefits, and this possibility must be kept in mind when discussing potential criminal justice reforms. This “gateway effect” does not require that, but, is strongest when, people underestimate, or ignore, either the likelihood or magnitude of the consequences associated with being convicted for a minor crime. Therefore, - if potential offenders in fact underestimate expected conviction costs - this theory not only implies previously unidentified benefits associated with decriminalizing acts that cause questionable or minor harms, but also benefits associated with making the costs associated with convictions more transparent.

Advancing Judicial Review of Wetlands and Property Rights Determinations: U.S. Army Corps of Engineers v. Hawkes

By Steven Eagle

ABSTRACT:

This Article analyzes recent U.S. Supreme Court decisions that enhance procedural protections for landowners alleging that stringent federal regulatory determinations threaten their Takings Clause rights. It uses as a focus the Court’s 2016 decision in U.S. Army Corps of Engineers v. Hawkes, involving the justiciability of “approved jurisdictional determinations” under the Clean Water Act. The Article reviews the practical difficulties resulting from the Corps of Engineers and Environmental Protection Agency’s sweeping definition of “Waters of the United States,” their demands involving wetlands, and landowners’ ability to meaningfully contest those demands in U.S. district court. The Article suggests how property owners might use the Court’s recent property rights and environmental holdings, and dicta, as guides to more effectively protect their property interests in the face of broad assertions of regulatory authority premised on very general statutory provisions.

Conflation, Intractability and Affordable Housing

By Steven Eagle

ABSTRACT:

This Article examines the varying and often-conflicting views of “affordable housing” of different social and economic groups. It asserts that attempts to deal with affordable housing issues must take into account the shelter, cultural, and economic needs of those populations, and also the effects of housing decisions on economic prosperity. The article focuses on affordable housing goals such as making available an ample supply of housing in different price ranges; attracting and retaining residents who contribute to the growth and economic prosperity of cities; ensuring that neighborhood housing remains available for existing residents, while preserving their cultural values; and providing adequate housing in high-cost cities for low- and moderate-income persons and the overlapping concern for “fair housing” for families of all races and backgrounds.  Thereafter, the Article examines the benefits and detriments of various means of providing more affordable housing, including fair-share mandates, rent control, and inclusionary zoning (including whether that leads to impermissible government takings of private property). It then briefly considers the merits and demerits of federal subsidy programs.  The Article briefly considers conceptual and practical problems in implementing the Su-preme Court’s 2015 Inclusive Communities disparate impact holding, and HUD’s 2015 regulations on “Affirmatively Furthering Fair Housing.” Finally, it discusses how the concept of “affordable housing” conflates the separate issues of high housing prices and poverty, and how housing prices might be reduced through removal of regulatory barriers to new construction.  Throughout, the Article stresses that advancing affordable housing goals have both explicit and implicit costs, and that goals often are conflicting. To those ends, it employs economic and sociological as well as legal perspectives.

Conditional Privacy Rights

By Murat Mungan

ABSTRACT:

People have subjective valuations of privacy. Thus, absent further considerations, efficiency requires that a person be afforded privacy if, and only if, his subjective valuation of privacy exceeds the social value of the information that would be disclosed through a violation of that person's privacy. Absolute regimes that either always allow privacy, or never allow privacy, cannot achieve this result. This article shows that a conditional privacy regime can lead to efficient separation among people based on their subjective valuations of privacy. Moreover, this regime need not inefficiently distort information collection incentives or incentives to refrain from various acts that may generate collectible information.

Salience and the Severity Versus the Certainty of Punishment

By Murat Mungan

ABSTRACT:

The certainty aversion presumption (CAP) in the economics of law enforcement literature asserts that criminals are more responsive to increases in the certainty rather than the severity of punishment. In simple economic models, this presumption implies that criminals must be risk-seeking. Some scholars claim that this and similar anomalous implications are caused by the exclusion of various behavioral considerations in theoretical analyses. This article investigates whether a model in which criminals over-weigh probabilities attached to more salient outcomes (as in Bordalo et al. (2012) and (2013)) performs better than the simple expected utility theory model in explaining CAP-consistent-behavior. The analysis reveals that the answer is negative unless the probability of punishment is unreasonably high. This finding suggests that we should exercise caution in incorporating salience -- a la Bordalo et al. -- in simple law enforcement models.

The Certainty versus the Severity of Punishment, Repeat Offenders, and Stigmatization

By Murat Mungan

ABSTRACT:

There is a widely held presumption that the certainty of punishment (p) is a greater deterrent than the severity of punishment (s). This presumption is at odds with evidence from recent experimental work suggesting the contrary, and the implication of simple law enforcement models that risk-averse individuals must be deterred more by an increase in s than a comparable increase in p. This article demonstrates that this discrepancy may be the result of subtle differences in the effects being investigated. In particular, when repeat offenders are punished more severely than first time offenders, a change in p can have a greater effect than an increase in s on the aggregate offense level, even when each individual offender is more responsive to s than p. This is because an increase in p corresponds to moving some offenders from the first time offender category to the repeat offender category, which reduces the crime rate by causing a discrete increase in the sanctions that these individuals face. This effect is reversed when a first conviction results in stigma that more than off-sets the difference between the formal sanction for repeat offenders and first time offenders, because, then, the total sanction for repeat offenders is lower than the total sanction for first time offenders. In these cases, stigmatization can cause criminogenic effects. However, these negative effects are generally off-set by a second effect that emerges when stigmatization is present: an increase in p results in greater expected formal as well as informal sanctions, whereas an increase in s only affects the expected formal sanction. Finally, all results are derived by assuming that individuals are risk-neutral, implying that individuals need not be risk-seeking for deterrence to be more responsive to p than s, which is a point claimed in Becker (1968).