November 2006 Vol. 105 No. 2 THE REVIEW

"Eggshell" Victims, Private Precautions, and the Societal Benefits of Shifting Crime

Robert A. Mikos

Individuals spend billions of dollars every year on precautions to protect themselves from crime. Yet the legal academy has criticized many private precautions because they merely shift crime onto other, less guarded citizens, rather than reduce crime. The conventional wisdom likens such precaution-taking to rent-seeking: citizens spend resources to shift crime losses onto other victims, without reducing the size of those losses to society. The result is an unambiguous reduction in social welfare. This Article argues that the conventional wisdom is flawed because it overlooks how the law systematically understates the harms suffered by some victims of crime, first, by ignoring some types of harm altogether in grading and sentencing decisions, and second, by ignoring wide disparities in the amount of harm caused in individual cases. It follows that the same “crime”, as defined by the law, may inflict significantly different amounts of harm on different victims, and by aggregation, on society. Thus it cannot be safely assumed that displacing a given crime from one citizen to the next is necessarily wasteful, from a social point of view. Indeed, this Article argues that shifting crime may be beneficial to society, from an economic point of view, since eggshell victims—those who are harmed more by crime—tend to take more precautions. The implication is that private crime fighting efforts that displace crime—universally criticized in the literature—may be more socially useful than previously acknowledged. The Article concludes by discussing how this insight impacts the ongoing debates over the regulation of precaution-taking.

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