Samuel W. Buell (Washington University School of Law) has posted The Upside of Overbreadth on SSRN. Here ist he abstract:
Overbreadth in criminal liability rules, especially in federal law, is abundant and much lamented. Overbreadth is avoidable if it results from normative mistakes about how much conduct to criminalize or from insufficient care to limit open texture in statutes. Social planners cannot so easily avoid overbreadth if they cannot reach behaviors for which criminalization is well justified without also reaching behaviors for which it is not. This mismatch problem is acute if persons engaging in properly criminalized behaviors deliberately alter their conduct to avoid punishment and have resources to devote to avoidance efforts. In response to such efforts, legal actors are apt to expand liability rules further, feeding a cycle of evasion and overbreadth that characterizes important areas of contemporary criminal law. Lawmakers cannot purge the resulting overbreadth from liability rules without producing underbreadth, at significant cost to regulatory objectives. I conclude that, in some areas of expanding substantive criminal law, answers to "overcriminalization" therefore lie not in reducing the scope of conduct rules but in greater reliance on mens rea doctrines, redesign of enforcement institutions, and modification of sentencing practices.
And from the paper:
Overbreadth that is a byproduct of regulatory efforts that can only reach undesirable behaviors with liability rules that overshoot their mark is not itself a problem. The problem is the agency costs imposed on society by the undesirable actions of enforcers empowered by overbroad rules. Suppose rule X, which is intended to sanction harmful behavior A, turns out, on its terms, also to authorize sanctioning of much less (or non) harmful behavior B. The problem is of largely academic interest unless one or more of three things happens: An enforcer uses rule X to sanction behavior B; an enforcer induces a guilty plea to some offense that could not have been obtained but by threatening to use rule X to sanction behavior B; or behavior B is not only not harmful but also socially valuable, and a private actor refrains from behavior B out of fear that an enforcer will use rule X to sanction behavior B.
I certainly enjoyed this interesting paper. Worthwhile and recommended.
There is another possible problem with overbreadth. Overbreadth results in a mismatch between what law and morality, and this mismatch becomes public in the case of deliberately chosen overbreadth. If the laws are systematically overbroad, then citizens should not (and will not) internalize the laws as norms–instead citizens are encouraged to regard the laws from an instrumental perspective. This may damage the effectiveness of law–and be costly from a consequentialist perspective. But if one’s normative theory of law requires laws be internalizeable (as some deontological and aretaic theories do), then deliberate and public overbreadth is a very serious problem.
Read Buell!