Ranking the alternative system efficiency Formal protection of civil liberties1950 US political model 1 4Adversarial legalism 4 1US plea bargaining 2 3Bureaucratic legalism 3 2● The shadow of the law ○ Costly unpredictable system of A-L■ Incentives to plea bargain ■ Results often “divorced” from legal merits● Criminal versus civil law○ Criminal law■ Involves the prohibition of certain conduct and the threat of punishment by the state○ Civil law■ Involves everything else, and typically-but not always-centers on compensation of the plaintiff● The bottom line○ We frequently use our civil justice system to address significant social, economic,and political issues that other countries address via parties and the bureaucracy ○ So let’s take a took at how the civil litigation process works ● Civil cases: a procedural timeline ○ Filing of the complaint by the plaintiff ○ Defendant either ■ Defaults■ Answers ■ (may counterclaim)○ Pre-trial discovery and motions■ Motions to dismiss ■ Summary judgment motions○ Pre-trial conference ○ Trial ○ Post-trial motions ○ Appeals○ Judgment enforcement● The cost and inefficiency of A-L ○ A-L is slow■ Median time to trial two years■ Germany half had decision within 6 months, ¾ in 9 months ○ A-L is expensive■ Litigation costs ranged from 35 to 45 percent on each side○ A-L is unpredictable■ Judges reduce 20 to 25 percent of all jury awards● Why is the US system so costly○ Redundant procedures ○ All-at-once trial ○ Juries ● Why is the US system unpredictable○ Juries ○ Politically selected judges ○ Entrepreneurial lawyers○ SO WHAT?■ Vast majority of cases settle■ Number range from 80 to 97 percent of all cases depending on the study ● Bargaining in the shadow of high costs and legal uncertainty ● What's wrong with settlement?○ It is a form of self help in which parties can tailor the outcome to the individual merits of the case○ By definition, it involves mutual consent and thus should have a high degree of legitimacy○ It is faster and less costly than trial ○ Results can be tailored on case-by-case basis ○ What could possibly go wrong ■ Bargaining in the shadow of the cost and uncertainty of A-Lscenario I II III IVStatus of law clear clear unclear unclearExpected damages$100 $100 Pi = $100Delta = $80Pi = $100Delta =
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