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Full-Text Articles in Law
Plea Bargaining Outside The Shadow Of Trial, Stephanos Bibas
Plea Bargaining Outside The Shadow Of Trial, Stephanos Bibas
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Plea-bargaining literature predicts that parties strike plea bargains in the shadow 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. Agency costs; attorney competence, compensation, and workloads; resources; sentencing and bail rules; and information deficits all skew bargaining. In addition, psychological biases and heuristics warp judgments: overconfidence, denial, discounting, risk preferences, loss aversion, framing, and anchoring all affect bargaining decisions. Skilled lawyers can partly counteract some of these problems but sometimes overcompensate. The …
Client Counseling, Mediation, And Alternative Narratives Of Dispute Resolution, Robert Rubinson
Client Counseling, Mediation, And Alternative Narratives Of Dispute Resolution, Robert Rubinson
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This article examines how litigation and mediation have distinct narrative structures and what these narratives say about counseling clients about mediation. In the narrative of litigation, parties struggle against one another in order to convince a decision maker of the truth of "what happened." This struggle is about more than designating liability; it is about enabling the decision-maker to restore social order and vindicate morality. In contrast, the narrative of mediation does not call upon the mediator to designate "truth" or "right" and "wrong." Rather, the mediator acts to enable parties to overcome and transform conflict through collaboration. In the …