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Why Not Adopt a Loser-Pays-All Rule in Criminal Litigation?

International Review of Law and Economics, 2012

Illinois Program in Law, Behavior and Social Science Paper No. LBSS12-03

29 Pages Posted: 6 Mar 2012 Last revised: 12 Sep 2012

Nuno M. Garoupa

Texas A&M University School of Law; Catholic University of Portugal (UCP) - Católica Global School of Law

Luciana Echazu

Clarkson University

Date Written: January 5, 2012

Abstract

In this paper we consider the potential effects that the application of a loser-pays-all rule may have on criminal litigation, including the decision to prosecute, criminal deterrence and legal error. We find that the effects of fee shifting on deterrence and on miscarriage of justice go in opposite directions. We also look at the effects of this rule on the rate of settlements (plea-bargaining) and when one party is wealth-constrained. We apply the insights of our model to current policy discussions such as the use of RICO proceedings and the financing of enforcement authorities in the United States.

Keywords: loser-pays-all rule, fee shifting, prosecutor, criminal litigation

JEL Classification: K1, K4

Suggested Citation

Garoupa, Nuno M. and Echazu, Luciana, Why Not Adopt a Loser-Pays-All Rule in Criminal Litigation? (January 5, 2012). International Review of Law and Economics, 2012; Illinois Program in Law, Behavior and Social Science Paper No. LBSS12-03. Available at SSRN: https://ssrn.com/abstract=2016340

Nuno M. Garoupa (Contact Author)

Texas A&M University School of Law ( email )

1515 Commerce St.
Fort Worth, TX 76102
United States

Catholic University of Portugal (UCP) - Católica Global School of Law ( email )

Lisboa
Portugal

Luciana Echazu

Clarkson University ( email )

Potsdam, NY 13699-5780
United States
315-268-6456 (Phone)

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