The Duties of Non-Judicial Actors in Ensuring Competent Negotiation

9 Pages Posted: 7 Jun 2013

See all articles by Stephanos Bibas

Stephanos Bibas

University of Pennsylvania Law School

Date Written: 2013


This essay, written for a symposium at Duquesne Law School entitled Plea Bargaining After Lafler and Frye, offers thoughts on how lawyers could learn from doctors’ experience in catching and preventing medical errors and aviation experts’ learning from airplane crashes and near misses. It also expresses skepticism about the efficacy of judges’ ex post review of ineffective assistance of counsel, but holds out more hope that public-defender organizations, bar associations, probation officers, sentencing judges, sentencing commissions, and line and supervisory prosecutors can do much more to prevent misunderstanding and remedy ineffective bargaining advice in the first place.

Keywords: criminal procedure, plea bargaining, legal errors and omissions, ineffective assistance of counsel, outcome of bargaining and trials, ex post review by judges, ex ante impact of Lafler v. Cooper and Missouri v. Frye, evidence-based medicine, medical errors, systemic design, checklists, judicial role

Suggested Citation

Bibas, Stephanos, The Duties of Non-Judicial Actors in Ensuring Competent Negotiation (2013). Duquesne University Law Review, Vol. 51, p. 625, 2013, U of Penn Law School, Public Law Research Paper No. 13-16, Available at SSRN:

Stephanos Bibas (Contact Author)

University of Pennsylvania Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States
215-746-2297 (Phone)


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