If the price is right: Unfair advantage, auctions, and proportionality

[author unknown]

Abstract

Michael Ridge At one point in England it was a capital offense to “appear on a high road with a sooty face.”1 I do not know whether anyone was executed for this offense, but many people were sent to Australian penal colonies for such petty crimes as stealing a handkerchief. More recently, Kenneth Payne was sentenced to 16 years in prison for stealing a Snickers Bar in Texas. When the Assistant District Attorney in this case was asked how she could justify putting a man in prison for 16 years for stealing a candy bar she replied, “It was a king size,” and indeed it was – value, $1.00.2 These punishments are vulnerable to many criticisms but the most obvious is that they do not fit the crime. Unfortunately, the idea that the punishment should fit the crime is as difficult to characterize precisely as it is plausible. The doctrine of lex talonis embodied in the slogan “an eye for an eye” provides the most obvious answer to this question but it has the unfortunate vice of being false. In some cases the problems with lex talonis are moral ones – we would debase ourselves if we were literally to rape rapists. In other cases the problems are conceptual – taken literally, the theory seems to have no intelligible application for a crime like treason, for example. These problems are familiar and defenders of lex talonis typically qualify the doctrine in ways that are supposed to avoid them. However these qualifications typically are either ad hoc or too metaphorical to be helpful. Intriguingly, Michael Davis argues that we can formulate a more precise and non-metaphorical account of proportionality by..

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