Bargaining in the Shadow of the Judge

Adi Leibovitch (Hebrew University )

Abstract : A fundamental assumption of the “bargaining in the shadow of trial” model is that prosecutors and defendants are focused on maximizing their utility based on the outcomes of the particular case. Unlike private parties, however, it is unclear whether prosecutors care only about the outcome of an individual case or have other considerations as well when negotiating plea bargains. Yet, very little is empirically known about plea bargaining negotiations “in the shadow of the judge.” Using data from Pennsylvania Courts of Common Pleas, the paper develops a novel approach building on the fact that defendants choose not only between a trial and a plea bargain—defendants may also choose to plead guilty (without negotiating a bargain) and leave sentencing to the discretion of the judge. Empirically evaluating the choice between negotiated and non-negotiated guilty pleas allows to isolate the impact of the judge on the outcomes of plea bargains separate from the effect of the expected “trial penalty.”

Hard Cases Make Bad Law? a Theoretical Investigation

Sepehr Shahshahani (Fordham Law School)

Abstract : I use formal models to probe the aphorism that ''hard cases make bad law.'' The analysis recovers the aphorism's core intuition but also enriches and extends it. I show that, among cases posing an extra-doctrinal ''special hardship,'' difficult cases and important cases are more likely to make bad law. But, conditional on making bad law, more-difficult cases make less-bad law. I also model impact litigators who can influence the selection of cases that make law. The litigator improves lawmaking when her influence over case selection is modest--even when her preferred rule is far from the ideal rule--but her effect on lawmaking quality is more nuanced when she has greater selection power. Finally I model a judicial hierarchy with asymmetric information and factfinding discretion. Here, even cases that do not pose a special hardship may make bad law; the effect of difficulty on lawmaking quality is nonmonotonic; and bad laws are Pareto-dominated. The insights enrich our understanding of judicial lawmaking, as illustrated by a variety of applications.

Pay to Play? Campaign Finance and the Incentive Gap in the Sixth Amendment’s Right to Counsel

Neel Sukhatme (Georgetown University Law Center)
Jay Jenkins (Texas Criminal Justice Coalition)

Abstract : We provide the first empirical evidence on how campaign finance can distort criminal trial court behavior. Using data from Harris County, Texas, we find that elected trial court judges and criminal defense attorneys regularly engage in “pay to play,” where judges appoint attorneys who donate to their campaigns as counsel for indigent defendants. Judges routinely accept such donations, often as apparent “entry fees” from attorneys who have just become eligible for appointments. These judges, in turn, typically award their donors more than double the cases they award to non-donors, with the average donor attorney earning greater than a 27-fold return on her donation. Indeed, we find indigent defense appointments can be surprisingly lucrative, with many donor attorneys earning tens or even hundreds of thousands of dollars across the hundreds of cases assigned to them by their donee judges. This apparent quid pro quo between judges and defense attorneys also appears to directly harm defendants. We find that defense attorneys who donate to a judge are, if anything, less successful than non-donor attorneys in attaining charge reductions, dismissals, and acquittals, or avoiding prison sentences. We contend donor attorneys might underperform simply because they take on so many more cases from their donee judges, and hence spend less time on each matter. We also show how similar campaign finance and attorney assignment rules might enable pay to play in other states, affecting the right to counsel for millions of Americans.