Plea-bargaining literature predicts that parties strike plea bargains in the shadows of expected trial outcomes. In other words, parties forecast the expected sentence after trial, discount it by the probability of acquittal, and offer some proportional discount. This oversimplified model ignores how structural distortions skew bargaining outcomes, causing them to diverge from trial outcomes. Part I of this Article explores the various structural forces that warp plea bargains. Agency costs, attorney compensation and workloads, resources, sentencing and bail rules, and information deficits all skew bargaining. In addition, psychological biases and heuristics warp judgments. Part II applies recent research from behavioral law and economics and cognitive psychology to critique plea bargaining. Overconfidence, denial, discounting, risk preferences, loss aversion, framing, and anchoring all affect bargaining decisions. Skilled lawyers can partly counteract some of these problems, but they can also overcompensate. The oversimplified shadow-of-trial model of plea bargaining needs to be supplemented by a structural-psychological perspective. On this perspective, uncertainty, money, self-interest, and demographic variation greatly influence plea bargains. Part III explores how to respond to the various structural and psychological influences that warp plea bargains. Reforming systems of defense counsel, bail rules, and the structure of sentencing rules, and increasing use of mediators and judges in bargaining could ameliorate some of these influences. Other problems, such as demographic variations in psychology, are very difficult to correct. These influences cast light on how civil and criminal bargaining differ in important respects.
{"title":"Plea Bargaining Outside the Shadow of Trial","authors":"Stephanos Bibas","doi":"10.2139/SSRN.464880","DOIUrl":"https://doi.org/10.2139/SSRN.464880","url":null,"abstract":"Plea-bargaining literature predicts that parties strike plea bargains in the shadows of expected trial outcomes. In other words, parties forecast the expected sentence after trial, discount it by the probability of acquittal, and offer some proportional discount. This oversimplified model ignores how structural distortions skew bargaining outcomes, causing them to diverge from trial outcomes. Part I of this Article explores the various structural forces that warp plea bargains. Agency costs, attorney compensation and workloads, resources, sentencing and bail rules, and information deficits all skew bargaining. In addition, psychological biases and heuristics warp judgments. Part II applies recent research from behavioral law and economics and cognitive psychology to critique plea bargaining. Overconfidence, denial, discounting, risk preferences, loss aversion, framing, and anchoring all affect bargaining decisions. Skilled lawyers can partly counteract some of these problems, but they can also overcompensate. The oversimplified shadow-of-trial model of plea bargaining needs to be supplemented by a structural-psychological perspective. On this perspective, uncertainty, money, self-interest, and demographic variation greatly influence plea bargains. Part III explores how to respond to the various structural and psychological influences that warp plea bargains. Reforming systems of defense counsel, bail rules, and the structure of sentencing rules, and increasing use of mediators and judges in bargaining could ameliorate some of these influences. Other problems, such as demographic variations in psychology, are very difficult to correct. These influences cast light on how civil and criminal bargaining differ in important respects.","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":null,"pages":null},"PeriodicalIF":3.4,"publicationDate":"2004-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.464880","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67740717","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Ruti G. Teitel, N. Dorsen, M. Rosenfeld, András Sajó, S. Baer
{"title":"Comparative Constitutional Law in a Global Age","authors":"Ruti G. Teitel, N. Dorsen, M. Rosenfeld, András Sajó, S. Baer","doi":"10.2307/4093406","DOIUrl":"https://doi.org/10.2307/4093406","url":null,"abstract":"","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":null,"pages":null},"PeriodicalIF":3.4,"publicationDate":"2004-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/4093406","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68731809","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
I feel compelled to respond to a recent student-written Note1 that critiques my Article, Inmate Litigation,2 published last year in the Review. The Note aims to expose my work as an (“at least . . . unconscious”3) exercise in left-leaning political argumentation in the guise of technocratic, quantitative data-crunching. The accusation of covert politics is puzzling. My piece employed careful quantitative and qualitative empirical techniques to evaluate a statute, the Prison Litigation Reform Act (PLRA),4 that restricts the legal rights of some of the most disempowered and vulnerable people in this country. The politics of that inquiry are clear, and I made no attempt to hide them: I think that the outcome of such systematic investigation matters — that it is wrong to curtail litigation rights, even of inmates, if the effect is to deny redress to victims of unconstitutional misconduct or if the policy change is based on false factual arguments. Unlike the Note, that is, I would hold Congress accountable for both the premises on which it rested inmate litigation reform and the results of that reform. The anonymous Note author’s (shocked, shocked!) discovery that my piece was driven by such an agenda, hidden in plain sight, hardly requires much analytic insight. But whatever one’s politics, I believe that there is something to be said for fair and careful use of data, as well. Unfortunately, these qualities are nowhere to be found in the Note. Instead, its author engages both in egregious misreading of my piece — mischaracterizing both my arguments and the data on which they rest — and in illogical argumentation that hides rather than clarifies the meaning and effects of statutory provisions. These failings are particularly unfortunate because they obstruct serious policy debate, which is what my piece attempted to promote. The problem begins with the Note’s frame, which asserts that I attempted but failed to establish that the PLRA’s proponents would, if only
{"title":"The Politics of \"Inmate Litigation\"","authors":"Margo Schlanger","doi":"10.2307/4093420","DOIUrl":"https://doi.org/10.2307/4093420","url":null,"abstract":"I feel compelled to respond to a recent student-written Note1 that critiques my Article, Inmate Litigation,2 published last year in the Review. The Note aims to expose my work as an (“at least . . . unconscious”3) exercise in left-leaning political argumentation in the guise of technocratic, quantitative data-crunching. The accusation of covert politics is puzzling. My piece employed careful quantitative and qualitative empirical techniques to evaluate a statute, the Prison Litigation Reform Act (PLRA),4 that restricts the legal rights of some of the most disempowered and vulnerable people in this country. The politics of that inquiry are clear, and I made no attempt to hide them: I think that the outcome of such systematic investigation matters — that it is wrong to curtail litigation rights, even of inmates, if the effect is to deny redress to victims of unconstitutional misconduct or if the policy change is based on false factual arguments. Unlike the Note, that is, I would hold Congress accountable for both the premises on which it rested inmate litigation reform and the results of that reform. The anonymous Note author’s (shocked, shocked!) discovery that my piece was driven by such an agenda, hidden in plain sight, hardly requires much analytic insight. But whatever one’s politics, I believe that there is something to be said for fair and careful use of data, as well. Unfortunately, these qualities are nowhere to be found in the Note. Instead, its author engages both in egregious misreading of my piece — mischaracterizing both my arguments and the data on which they rest — and in illogical argumentation that hides rather than clarifies the meaning and effects of statutory provisions. These failings are particularly unfortunate because they obstruct serious policy debate, which is what my piece attempted to promote. The problem begins with the Note’s frame, which asserts that I attempted but failed to establish that the PLRA’s proponents would, if only","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":null,"pages":null},"PeriodicalIF":3.4,"publicationDate":"2004-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/4093420","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68732043","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Plea Bargaining and Criminal Law's Disappearing Shadow","authors":"William J. Stuntz","doi":"10.2307/4093405","DOIUrl":"https://doi.org/10.2307/4093405","url":null,"abstract":"","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":null,"pages":null},"PeriodicalIF":3.4,"publicationDate":"2004-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/4093405","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68732264","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Modern computing technologies and the Internet have generated the capacity to gather, manipulate, and share massive quantities of data; this capacity, in turn, has spawned a booming trade in personal information. Even as it promises new avenues for the creation of wealth, this controversial new market also raises significant concerns for individual privacy-consumers and citizens are often unaware of, or unable to evaluate, the increasingly sophisticated methods devised to collect information about them. This Article develops a model of propertized personal information that responds to these serious concerns about privacy. It begins this task with a description and an analysis of several emerging technologies that illustrate both the promise and peril of the commodification of personal data. This Article also evaluates the arguments for and against a market in personal data, and concludes that while free alienability arguments are insufficient to justify unregulated trade in personal information, concerns about market failure and the public's interest in a protected privacy commons are equally insufficient to justify a ban on the trade. This Article develops the five critical elements of a model for propertized personal information that would help fashion a market that would respect individual privacy and help maintain a democratic order. These five elements are: limitations on an individual's right to alienate personal information; default rules that force disclosure of the terms of trade; a right of exit for participants in the market; the establishment of damages to deter market abuses; and institutions to police the personal information market and punish privacy violations. Finally, this Article returns to examples of technologies already employed in data trade and discusses how this proposed model would apply to them.
{"title":"Property, Privacy, and Personal Data","authors":"P. Schwartz","doi":"10.2307/4093335","DOIUrl":"https://doi.org/10.2307/4093335","url":null,"abstract":"Modern computing technologies and the Internet have generated the capacity to gather, manipulate, and share massive quantities of data; this capacity, in turn, has spawned a booming trade in personal information. Even as it promises new avenues for the creation of wealth, this controversial new market also raises significant concerns for individual privacy-consumers and citizens are often unaware of, or unable to evaluate, the increasingly sophisticated methods devised to collect information about them. This Article develops a model of propertized personal information that responds to these serious concerns about privacy. It begins this task with a description and an analysis of several emerging technologies that illustrate both the promise and peril of the commodification of personal data. This Article also evaluates the arguments for and against a market in personal data, and concludes that while free alienability arguments are insufficient to justify unregulated trade in personal information, concerns about market failure and the public's interest in a protected privacy commons are equally insufficient to justify a ban on the trade. This Article develops the five critical elements of a model for propertized personal information that would help fashion a market that would respect individual privacy and help maintain a democratic order. These five elements are: limitations on an individual's right to alienate personal information; default rules that force disclosure of the terms of trade; a right of exit for participants in the market; the establishment of damages to deter market abuses; and institutions to police the personal information market and punish privacy violations. Finally, this Article returns to examples of technologies already employed in data trade and discusses how this proposed model would apply to them.","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":null,"pages":null},"PeriodicalIF":3.4,"publicationDate":"2004-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/4093335","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68731120","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The Child's Best Interests: A Neglected Perspective on Interracial Intimacies","authors":"M. Brinig, R. Kennedy","doi":"10.2307/4093336","DOIUrl":"https://doi.org/10.2307/4093336","url":null,"abstract":"","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":null,"pages":null},"PeriodicalIF":3.4,"publicationDate":"2004-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/4093336","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68731258","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
We lack an entirely convincing account of the scope of Congress's power under the Constitution to create Article I tribunals and invest them with authority to adjudicate disputes that seemingly come within the scope of Article III. The literal terms of Article III have seemed to many to rule out reliance upon Article I tribunals altogether; the provision vests the judicial power of the United States in federal courts whose judges enjoy salary and tenure protections that were designed to ensure judicial independence in a scheme of separated powers. Judges of Article I tribunals - including territorial courts, courts-martial, and administrative agencies - often serve without such protections, and the transfer of work to them seems to threaten judicial independence. Yet the literal account does not well explain the proliferation of Article I tribunals, which have grown up and flourished throughout the nation's history. This institutional history of Article I adjudication explains the need for alternative accounts, but none of the competitors resolves the problem. The balancing test, which the Supreme Court now appears to prefer, acknowledges some role for Article I tribunals, but fails to provide clear guidelines as to when Congress may sidestep Article III. A more promising academic theory - the appellate review account - emphasizes the need for appellate review in constitutional courts as the key to Article I adjudication. While it offers greater coherence, it does not fit especially well with our institutional history, and it would seemingly authorize some arrangements that depart dramatically from current law. This Article develops a new "inferior tribunals" account of the interplay between Article I and Article III. Building on the constitutional distinction between "inferior tribunals" (in Article I) and "inferior courts" (in Article III), the Article suggests a new textual foundation for Article I tribunals. In particular, the Article contends that Congress may constitute inferior tribunals to hear matters that it has structured to fall outside the judicial power of the United States under Article III. Such non-Article III matters have traditionally included a range of familiar proceedings: public-rights claims (where the lack of finality precluded judicial involvement); courts-martial proceedings (which were assigned to the military for handling outside Article III); and local matters before territorial courts (which were understood to differ importantly from the nationally uniform rules of law that Article III courts were expected to enforce). The Article further suggests that the constitutionality of Article I tribunals requires that the tribunals remain inferior to the judicial department of the United States. Based upon the text of Article I, the inferiority requirement draws its strength from an institutional history that features widespread judicial oversight of Article I adjudication. The judicial department has preserved the inferior
{"title":"Article I Tribunals, Article Iii Courts, and the Judicial Power of the United States","authors":"James E. Pfander","doi":"10.2307/4093393","DOIUrl":"https://doi.org/10.2307/4093393","url":null,"abstract":"We lack an entirely convincing account of the scope of Congress's power under the Constitution to create Article I tribunals and invest them with authority to adjudicate disputes that seemingly come within the scope of Article III. The literal terms of Article III have seemed to many to rule out reliance upon Article I tribunals altogether; the provision vests the judicial power of the United States in federal courts whose judges enjoy salary and tenure protections that were designed to ensure judicial independence in a scheme of separated powers. Judges of Article I tribunals - including territorial courts, courts-martial, and administrative agencies - often serve without such protections, and the transfer of work to them seems to threaten judicial independence. Yet the literal account does not well explain the proliferation of Article I tribunals, which have grown up and flourished throughout the nation's history. This institutional history of Article I adjudication explains the need for alternative accounts, but none of the competitors resolves the problem. The balancing test, which the Supreme Court now appears to prefer, acknowledges some role for Article I tribunals, but fails to provide clear guidelines as to when Congress may sidestep Article III. A more promising academic theory - the appellate review account - emphasizes the need for appellate review in constitutional courts as the key to Article I adjudication. While it offers greater coherence, it does not fit especially well with our institutional history, and it would seemingly authorize some arrangements that depart dramatically from current law. This Article develops a new \"inferior tribunals\" account of the interplay between Article I and Article III. Building on the constitutional distinction between \"inferior tribunals\" (in Article I) and \"inferior courts\" (in Article III), the Article suggests a new textual foundation for Article I tribunals. In particular, the Article contends that Congress may constitute inferior tribunals to hear matters that it has structured to fall outside the judicial power of the United States under Article III. Such non-Article III matters have traditionally included a range of familiar proceedings: public-rights claims (where the lack of finality precluded judicial involvement); courts-martial proceedings (which were assigned to the military for handling outside Article III); and local matters before territorial courts (which were understood to differ importantly from the nationally uniform rules of law that Article III courts were expected to enforce). The Article further suggests that the constitutionality of Article I tribunals requires that the tribunals remain inferior to the judicial department of the United States. Based upon the text of Article I, the inferiority requirement draws its strength from an institutional history that features widespread judicial oversight of Article I adjudication. The judicial department has preserved the inferior","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":null,"pages":null},"PeriodicalIF":3.4,"publicationDate":"2004-04-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/4093393","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68732067","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Lawrence V. Texas: The \"Fundamental Right\" That Dare Not Speak Its Name","authors":"L. Tribe","doi":"10.2307/4093306","DOIUrl":"https://doi.org/10.2307/4093306","url":null,"abstract":"","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":null,"pages":null},"PeriodicalIF":3.4,"publicationDate":"2004-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/4093306","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68730900","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Much of the Supreme Court's modern religion clause doctrine has been forged in conflicts that directly implicate the traditional powers of local governments: primary and secondary education, land use, police powers. Constitutional theorists have rarely treated this jurisdictional fact as significant because the post-incorporation Court has never made a distinction among levels of government - local, state, or federal - when considering Establishment or Free Exercise Clause challenges. This Article argues that courts and commentators should make such a distinction. More specifically, it argues that local regulations that burden or benefit religious belief, conduct, or exercise have different institutional effects than do similar state or national regulations, and that these differential effects should be taken into account when determining the contours of the Establishment and Free Exercise Clauses. The usual parochialism story is that local political institutions are often hostile to religious minorities and therefore particularly in need of central oversight - judicial or otherwise. I argue against this conventional wisdom. I contend that local government - and more generally the decentralization of power - is a robust structural component of religious liberty. On this account, the chief threat to religious liberty is the exercise of centralized power generally, either to benefit religion as a class or to burden it. The Court's religion clause jurisprudence should therefore be more skeptical of federal statues and regulations that touch on religion than similar local statutes and regulations. On this argument local governments are appropriate sites - not the only sites, certainly, but central and overlooked sites - for the negotiation of church-state relations.
{"title":"The Role of the Local in the Doctrine and Discourse of Religious Liberty","authors":"Richard C. Schragger","doi":"10.2139/SSRN.477221","DOIUrl":"https://doi.org/10.2139/SSRN.477221","url":null,"abstract":"Much of the Supreme Court's modern religion clause doctrine has been forged in conflicts that directly implicate the traditional powers of local governments: primary and secondary education, land use, police powers. Constitutional theorists have rarely treated this jurisdictional fact as significant because the post-incorporation Court has never made a distinction among levels of government - local, state, or federal - when considering Establishment or Free Exercise Clause challenges. This Article argues that courts and commentators should make such a distinction. More specifically, it argues that local regulations that burden or benefit religious belief, conduct, or exercise have different institutional effects than do similar state or national regulations, and that these differential effects should be taken into account when determining the contours of the Establishment and Free Exercise Clauses. The usual parochialism story is that local political institutions are often hostile to religious minorities and therefore particularly in need of central oversight - judicial or otherwise. I argue against this conventional wisdom. I contend that local government - and more generally the decentralization of power - is a robust structural component of religious liberty. On this account, the chief threat to religious liberty is the exercise of centralized power generally, either to benefit religion as a class or to burden it. The Court's religion clause jurisprudence should therefore be more skeptical of federal statues and regulations that touch on religion than similar local statutes and regulations. On this argument local governments are appropriate sites - not the only sites, certainly, but central and overlooked sites - for the negotiation of church-state relations.","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":null,"pages":null},"PeriodicalIF":3.4,"publicationDate":"2004-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67744952","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Reasonable Umbrage: Race and Constitutional Antidiscrimination Law in the United States and South Africa","authors":"Frank I. Michelman","doi":"10.2307/4093257","DOIUrl":"https://doi.org/10.2307/4093257","url":null,"abstract":"","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":null,"pages":null},"PeriodicalIF":3.4,"publicationDate":"2004-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/4093257","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68730352","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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