● 1950--A expert political model○ Plusses… ■ Fast (less than 17 secs in some cases)■ Open ■ Politically responsive to community values■ Effective ○ Minuses ■ No checks--legal or procedural--against arbitrary decisions ■ No voice for defendant/humiliating ■ Politically responsive as opposed to responsive to the individual merits of the case● Plusses and minuses of A-L○ Plusses ■ Lots of checks against governmental action ■ Individual advocacy/voice in process■ Ample opportunity to consider individual merits■ Innovative--entrepreneurial lawyers probing the limits of law○ Minuses ■ Slow ■ Costly ■ Dependent on litigant resources■ Unpredictable ■ Incentive to remain silent ● Remember not all self-help scenarios are created equal ○ “Go-it-alone” - L1 acts unilaterally ■ (not a problem here)○ “The Godfather” - L1 goes to a third party, who acts unilaterally ■ (not a problem here)○ “Mutual accommodation” - L1 and L2 work it out without help■ Great, as long as the plea bargain reflects a “fair” bargain that reflects theparty’s guilt or innocence● Plea bargaining ○ expert/political model (hybrid)○ Why plea bargain if you’re a defendant?■ Differential charging○ Why plea bargain if you’re a prosecutor■ Can’t afford to try every case○ We force litigants to bargain with the law● Plusses and minuses ○ Plusses ■ Relatively efficient■ Self-help is tailor-made and flexible■ There’s recourse to the courts if no deal can be reached ○ Minuses■ Not transparent■ Relatively few checks on prosecutor's discretion■ Outcomes likely to be highly variable and resource dependent ■ Places strategic concerns over substance ● American A-L v. German B-LFeature American A-L German B-LJuries Yes, but Yes, butGuilt + sentencing together No Yes Elaborate rules of evidence Yes No Lead investigator Parties and their lawyers (competing records)Court (single dossier)Incentives for defendant participationNo Yes Prosecutorial discretion Broad Limited ● Ranking the alternatives System Efficiency Protection of civil liberties 1950s US political model 1 4A-L 4 1US plea bargaining 2 3Bureaucratic legalism 3
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