Some Reflections On The Economics Of Prosecutors: Mandatory V Selective Prosecution

Mandatory prosecution is inefficient according to legal economists. The authors argue that when prosecutors are fairly insulated from their performance or are highly risk averse mandatory prosecution is better than selective prosecution. This result has important implications for comparative law since mandatory prosecution generally prevails in civil law jurisdictions whereas selective prosecution is typical of common law jurisdictions. The role of prosecutors in any given legal system is of importance to enforce and effectively apply the law, in particular criminal law and other areas of the law (such as family law). Nevertheless, the exact nature of the work performed by prosecutors and their institutional organization varies across legal systems.