Law and Economics of Plea-Bargaining

Abstract

Although highly criticized by legal scholars, plea-bargaining is probably the most transplanted instrument of criminal procedure. In contrast to most of the legal literature, Law and Economics is quite optimistic about it. In this paper, we take the view that such optimism is not well founded. Our approach is based on the view of plea-bargaining as part of a nexus of relationships that undermines the efficiency argument. In particular, we find it quite important to assess the defendant's lawyer's incentives and the prosecutor's goals, both of which are rather neglected in Law and Economics. Other aspects we consider are the interests of the victims and judicial scrutiny. Our conclusions temper the usual Law and Economics optimism.

Keywords: Plea-Bargaining, Defendant, Prosecution, Judicial Scrutiny

JEL Classification: K4