Cornell Law Review

Critics of the felony-murder rule have long argued that the rule is outdated and unreasonable, and the Su- preme Court since 1982 has interpreted the Eighth Amendment to limit use of the death penalty in felo- ny-murder cases. I present here two economic rationales for the felony-murder rule and show how the Court’s in- terpretation of the Eighth Amendment might burden po- tential victims of felonies. The first rationale is that the felony-murder rule reduces the use of violence in the commission of a felony by forcing the felon to bear the en- tire risk of consequential harm during the course of the felony. The extent to which a “transaction” (be it a con- tract, a tort, or a crime) is a voluntary exchange is in- versely related to the extent of liability for consequential harm. By extending liability for consequential harm, the felony-murder rule is a tax on violence as an input of criminal production. A second economic rationale for the felony-murder rule concerns team production of crimes. The felony-murder rule gives criminal partners an incen- tive to monitor one another for unnecessary use of vio- lence. One would therefore expect that, by decreasing a criminal’s expected costs of causing consequential harm for an unintended killing during the commission of a felony, the Court’s interpretation of the Eighth Amendment in felony-murder cases increases the incidence of violent felonies. To read more, click here.