The Value of Plea Bargaining

39 Pages Posted: 24 Aug 2006

See all articles by Scott Howe

Scott Howe

Chapman University, The Dale E. Fowler School of Law


This article defends plea bargaining and responds to a trend in the academic literature to evaluate bargaining according to a shadow of trial efficiency theory. The efficiency perspective on bargaining gained prominence in the early 90s when two highly respected academics, Robert Scott and William Stuntz, along with a prominent Circuit judge, Frank Easterbrook, endorsed it in articles appearing in the Yale Law Journal. Judicial efforts to justify regularized plea concessions on penological grounds were widely viewed among academics as unpersuasive, and almost all of the academic commentary on bargaining was negative. The shadow-of-trial efficiency theory offered something new. Based on perspectives earlier applied in the civil settlement context, proponents of the theory argued that plea bargaining is justified in part because its results largely mirror the results that would occur after a highly regularized trial process, discounted to reflect uncertainty and avoided adjudication costs. Soon, however, this rationalization of plea bargaining was itself attacked by other prominent academics, first Stephen Schulhofer and more recently Stephanos Bibas. They contended persuasively that defects in the plea bargaining process distort results away from accurately discounted trial outcomes. Consequently, they contended that bargaining should be seriously reformed and preferably abolished. In response to such commentary, this article defends plea bargaining without reliance on shadow-of-trial efficiency theory and, indeed, shows why that theory is an ill-conceived way to assess bargaining.

Keywords: plea bargaining, guilty plea, sentencing

Suggested Citation

Howe, Scott, The Value of Plea Bargaining. Oklahoma Law Review, Vol. 58, 2005, Available at SSRN:

Scott Howe (Contact Author)

Chapman University, The Dale E. Fowler School of Law ( email )

One University Drive
Orange, CA 92866-1099
United States

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