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Stephanos Bibas

Bio: Stephanos Bibas is an academic researcher from University of Pennsylvania. The author has contributed to research in topics: Supreme court & Criminal procedure. The author has an hindex of 17, co-authored 78 publications receiving 1358 citations. Previous affiliations of Stephanos Bibas include Washington and Lee University & University of the Pacific (United States).


Papers
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Journal ArticleDOI

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TL;DR: In this article, the authors explore the various structural forces that warp the bargaining process of criminal and civil bargainers, including overconfidence, denial, discounting, risk preferences, loss aversion, framing, and anchoring.
Abstract: Plea-bargaining literature predicts that parties strike plea bargains in the shadows 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, causing them to diverge from trial outcomes. Part I of this Article explores the various structural forces that warp plea bargains. Agency costs, attorney compensation and workloads, resources, sentencing and bail rules, and information deficits all skew bargaining. In addition, psychological biases and heuristics warp judgments. Part II applies recent research from behavioral law and economics and cognitive psychology to critique plea bargaining. Overconfidence, denial, discounting, risk preferences, loss aversion, framing, and anchoring all affect bargaining decisions. Skilled lawyers can partly counteract some of these problems, but they can also overcompensate. The oversimplified shadow-of-trial model of plea bargaining needs to be supplemented by a structural-psychological perspective. On this perspective, uncertainty, money, self-interest, and demographic variation greatly influence plea bargains. Part III explores how to respond to the various structural and psychological influences that warp plea bargains. Reforming systems of defense counsel, bail rules, and the structure of sentencing rules, and increasing use of mediators and judges in bargaining could ameliorate some of these influences. Other problems, such as demographic variations in psychology, are very difficult to correct. These influences cast light on how civil and criminal bargaining differ in important respects.

245 citations

Journal ArticleDOI

[...]

TL;DR: In this paper, the authors explore the various structural forces that warp the bargaining process of criminal and civil bargainers, including overconfidence, denial, discounting, risk preferences, loss aversion, framing, and anchoring.
Abstract: Plea-bargaining literature predicts that parties strike plea bargains in the shadows 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, causing them to diverge from trial outcomes. Part I of this Article explores the various structural forces that warp plea bargains. Agency costs, attorney compensation and workloads, resources, sentencing and bail rules, and information deficits all skew bargaining. In addition, psychological biases and heuristics warp judgments. Part II applies recent research from behavioral law and economics and cognitive psychology to critique plea bargaining. Overconfidence, denial, discounting, risk preferences, loss aversion, framing, and anchoring all affect bargaining decisions. Skilled lawyers can partly counteract some of these problems, but they can also overcompensate. The oversimplified shadow-of-trial model of plea bargaining needs to be supplemented by a structural-psychological perspective. On this perspective, uncertainty, money, self-interest, and demographic variation greatly influence plea bargains. Part III explores how to respond to the various structural and psychological influences that warp plea bargains. Reforming systems of defense counsel, bail rules, and the structure of sentencing rules, and increasing use of mediators and judges in bargaining could ameliorate some of these influences. Other problems, such as demographic variations in psychology, are very difficult to correct. These influences cast light on how civil and criminal bargaining differ in important respects.

179 citations

Posted Content

[...]

TL;DR: The insiders who run the criminal justice system - judges, police, and especially prosecutors - have information, power, and self-interests that greatly influence criminal justice process and outcomes as discussed by the authors.
Abstract: The insiders who run the criminal justice system - judges, police, and especially prosecutors - have information, power, and self-interests that greatly influence the criminal justice process and outcomes. Outsiders - crime victims, bystanders, and most of the general public - find the system frustratingly opaque, insular, and unconcerned with proper retribution. As a result, a spiral ensues: insiders twist rules as they see fit, outsiders try to constrain them, and insiders find new ways to evade or manipulate the new rules. The gulf between insiders and outsiders undercuts the instrumental, moral, and expressive efficacy of criminal procedure in serving the criminal law's substantive goals. The gulf clouds the law's deterrent and expressive message and efficacy in healing victims; it impairs trust in and the legitimacy of the law; it provokes increasingly Draconian reactions by outsiders; and it hinders public monitoring of agency costs. The most promising solutions are to better inform crime victims and other affected locals and to give them larger roles in criminal justice. It might be possible to better monitor and check insiders, but the prospects for empowering and educating the general public are dim.

119 citations

Posted Content

[...]

TL;DR: Criminal procedure should encourage and use remorse and apology to serve these substantive values at every stage, from before arrest through charging to pleas and sentences as discussed by the authors, and break down the artificial separation between substantive values and criminal procedure by harnessing procedure to serve the criminal law's substantive moral goals.
Abstract: Criminal procedure largely ignores remorse and apology or, at most, uses them as proxies for an individual defendant's badness. The field is preoccupied with procedural values such as efficiency, accuracy, and procedural fairness, to the exclusion of the criminal law's substantive moral values. Likewise, most legal scholars either ignore remorse and apology or squeeze them into the individual badness model, neglecting the broader roles that they can play in reconciling and educating offenders and healing victims and communities.The narrow focus on individual badness slights the broader value of remorse and apology and misses a crucial point. Crime is more than just individual wrongdoing; it harms social relationships. Currently, remorse and apology serve only as poor gauges of how much deterrence and retribution individual offenders need. Ideally, these tools would play much larger roles in mending the social, relational harms from crime. Remorse and apology are valuable ways to heal wounded relationships, vindicate victims, and educate, reconcile, and reintegrate offenders into the community.Criminal procedure should encourage and use remorse and apology to serve these substantive values at every stage, from before arrest through charging to pleas and sentences. The broader aim is twofold: to recognize the social dimension of criminal wrongdoing and punishment, and to break down the artificial separation between substantive values and criminal procedure by harnessing procedure to serve the criminal law's substantive moral goals.

76 citations

Book

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28 Feb 2012
TL;DR: In this article, the authors discuss the long drift from Morality Play to Assembly Line and the role of insiders' procedural discretion in criminal justice, and present a game of defense lawyers and defendants' distrust and overoptimism.
Abstract: Author Biography Acknowledgements Introduction: The Divergence of Theory, Reality, and Morality Overview of the Book Themes of the Book Chapter I: The Long Drift from Morality Play to Assembly Line A. Criminal Justice in the Early American Colonies 1. Small-Town Morality 2. Lay Justice 3. Room for Mercy 4. Reintegrative Punishment B. Criminal Justice Since the American Revolution 1. The Changing Aims of Criminal Justice 2. Professionalization 3. The Birth of Plea Bargaining 4. The Hiding of Punishment Behind Prison Walls 5. The Decline of Mercy Chapter II: Opaque, Unresponsive Criminal Justice A. The Players 1. Dominant Insiders, Savvy and Self-Interested 2. Excluded Outsiders, Yearning for Justice B. The Play of the Game 1. Round One: Insiders' Procedural Discretion Shapes the Rules in Action 2. Round Two: Outsiders Try to Check Insiders 3. Round Three: Insiders' Procedural Discretion Undercuts Reforms 4. Round Four: Outsiders, Egged on by Politicians, Take Matters into Their Own Hands 5. Round Five: Insiders Circumvent Even " Reforms C. Costs of the Game 1. Clouding the Criminal Law's Substantive Message and Effectiveness 2. Undermining Legitimacy and Trust 3. Hindering Public Monitoring and Preferences D. Defense Lawyers and Defendants' Distrust 1. Insider Defense Counsel's Interests and Pressures 2. Defendants' Overoptimism and Risk-Taking 3. Miscommunication, Mistrust, and Timing Chapter III: Denial, Remorse, Apology, and Forgiveness A. Denial and Equivocation 1. The Use of Pleas by Defendants in Denial 2. The Danger of Convicting the Innocent 3. The Costs of False Denial and the Value of Confession 4. The Value of Trials as Morality Plays B. Remorse, Apology, and Forgiveness 1. The Irrelevance of Remorse and Apology in Contemporary Criminal Justice 2. Crime as a Relational Concept 3. Lessons from Noncriminal Contexts: Civil Mediation Chapter IV: Whose Voices Belong in Criminal Justice? A. The State's Monopoly on Criminal Justice B. Incomplete Alternatives to the State's Assembly Line 1. Victims' Rights 2. Restorative Justice 3. Therapeutic Jurisprudence and Problem-Solving Courts Chapter V: Popular Moral Discourse Versus Assembly-Line Efficiency A. Efficiency Instead of Moral Judgment B. Why Not Address Substantive Moral Goals? Chapter VI: Returning Power to the Public in a Lawyer-Driven System A. Macro-Level Reforms 1. From Idle Imprisonment to Work, Accountability, and Reform 2. Collateral Consequences and Reentry B. Mid-Level Reforms to Include the Public 1. Greater Transparency 2. Increasing Public Participation C. Micro-Level Solutions 1. Victim Information and Consultation 2. Defendants' Information and Participation 3. Restorative Sentencing Juries

67 citations


Cited by
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[...]

01 Jan 2014
TL;DR: In this paper, Cardozo et al. proposed a model for conflict resolution in the context of bankruptcy resolution, which is based on the work of the Cardozo Institute of Conflict Resolution.
Abstract: American Bankruptcy Institute Law Review 17 Am. Bankr. Inst. L. Rev., No. 1, Spring, 2009. Boston College Law Review 50 B.C. L. Rev., No. 3, May, 2009. Boston University Public Interest Law Journal 18 B.U. Pub. Int. L.J., No. 2, Spring, 2009. Cardozo Journal of Conflict Resolution 10 Cardozo J. Conflict Resol., No. 2, Spring, 2009. Cardozo Public Law, Policy, & Ethics Journal 7 Cardozo Pub. L. Pol’y & Ethics J., No. 3, Summer, 2009. Chicago Journal of International Law 10 Chi. J. Int’l L., No. 1, Summer, 2009. Colorado Journal of International Environmental Law and Policy 20 Colo. J. Int’l Envtl. L. & Pol’y, No. 2, Winter, 2009. Columbia Journal of Law & the Arts 32 Colum. J.L. & Arts, No. 3, Spring, 2009. Connecticut Public Interest Law Journal 8 Conn. Pub. Int. L.J., No. 2, Spring-Summer, 2009. Cornell Journal of Law and Public Policy 18 Cornell J.L. & Pub. Pol’y, No. 1, Fall, 2008. Cornell Law Review 94 Cornell L. Rev., No. 5, July, 2009. Creighton Law Review 42 Creighton L. Rev., No. 3, April, 2009. Criminal Law Forum 20 Crim. L. Forum, Nos. 2-3, Pp. 173-394, 2009. Delaware Journal of Corporate Law 34 Del. J. Corp. L., No. 2, Pp. 433-754, 2009. Environmental Law Reporter News & Analysis 39 Envtl. L. Rep. News & Analysis, No. 7, July, 2009. European Journal of International Law 20 Eur. J. Int’l L., No. 2, April, 2009. Family Law Quarterly 43 Fam. L.Q., No. 1, Spring, 2009. Georgetown Journal of International Law 40 Geo. J. Int’l L., No. 3, Spring, 2009. Georgetown Journal of Legal Ethics 22 Geo. J. Legal Ethics, No. 2, Spring, 2009. Golden Gate University Law Review 39 Golden Gate U. L. Rev., No. 2, Winter, 2009. Harvard Environmental Law Review 33 Harv. Envtl. L. Rev., No. 2, Pp. 297-608, 2009. International Review of Law and Economics 29 Int’l Rev. L. & Econ., No. 1, March, 2009. Journal of Environmental Law and Litigation 24 J. Envtl. L. & Litig., No. 1, Pp. 1-201, 2009. Journal of Legislation 34 J. Legis., No. 1, Pp. 1-98, 2008. Journal of Technology Law & Policy 14 J. Tech. L. & Pol’y, No. 1, June, 2009. Labor Lawyer 24 Lab. Law., No. 3, Winter/Spring, 2009. Michigan Journal of International Law 30 Mich. J. Int’l L., No. 3, Spring, 2009. New Criminal Law Review 12 New Crim. L. Rev., No. 2, Spring, 2009. Northern Kentucky Law Review 36 N. Ky. L. Rev., No. 4, Pp. 445-654, 2009. Ohio Northern University Law Review 35 Ohio N.U. L. Rev., No. 2, Pp. 445-886, 2009. Pace Law Review 29 Pace L. Rev., No. 3, Spring, 2009. Quinnipiac Health Law Journal 12 Quinnipiac Health L.J., No. 2, Pp. 209-332, 2008-2009. Real Property, Trust and Estate Law Journal 44 Real Prop. Tr. & Est. L.J., No. 1, Spring, 2009. Rutgers Race and the Law Review 10 Rutgers Race & L. Rev., No. 2, Pp. 441-629, 2009. San Diego Law Review 46 San Diego L. Rev., No. 2, Spring, 2009. Seton Hall Law Review 39 Seton Hall L. Rev., No. 3, Pp. 725-1102, 2009. Southern California Interdisciplinary Law Journal 18 S. Cal. Interdisc. L.J., No. 3, Spring, 2009. Stanford Environmental Law Journal 28 Stan. Envtl. L.J., No. 3, July, 2009. Tulsa Law Review 44 Tulsa L. Rev., No. 2, Winter, 2008. UMKC Law Review 77 UMKC L. Rev., No. 4, Summer, 2009. Washburn Law Journal 48 Washburn L.J., No. 3, Spring, 2009. Washington University Global Studies Law Review 8 Wash. U. Global Stud. L. Rev., No. 3, Pp.451-617, 2009. Washington University Journal of Law & Policy 29 Wash. U. J.L. & Pol’y, Pp. 1-401, 2009. Washington University Law Review 86 Wash. U. L. Rev., No. 6, Pp. 1273-1521, 2009. William Mitchell Law Review 35 Wm. Mitchell L. Rev., No. 4, Pp. 1235-1609, 2009. Yale Journal of International Law 34 Yale J. Int’l L., No. 2, Summer, 2009. Yale Journal on Regulation 26 Yale J. on Reg., No. 2, Summer, 2009.

1,336 citations

Journal ArticleDOI

[...]

TL;DR: An interdisciplinary review of privacy-related research is provided in order to enable a more cohesive treatment and recommends that researchers be alert to an overarching macro model that is referred to as APCO (Antecedents → Privacy Concerns → Outcomes).
Abstract: To date, many important threads of information privacy research have developed, but these threads have not been woven together into a cohesive fabric. This paper provides an interdisciplinary review of privacy-related research in order to enable a more cohesive treatment. With a sample of 320 privacy articles and 128 books and book sections, we classify previous literature in two ways: (1) using an ethics-based nomenclature of normative, purely descriptive, and empirically descriptive, and (2) based on their level of analysis: individual, group, organizational, and societal. Based upon our analyses via these two classification approaches, we identify three major areas in which previous research contributions reside: the conceptualization of information privacy, the relationship between information privacy and other constructs, and the contextual nature of these relationships. As we consider these major areas, we draw three overarching conclusions. First, there are many theoretical developments in the body of normative and purely descriptive studies that have not been addressed in empirical research on privacy. Rigorous studies that either trace processes associated with, or test implied assertions from, these value-laden arguments could add great value. Second, some of the levels of analysis have received less attention in certain contexts than have others in the research to date. Future empirical studies-both positivist and interpretive--could profitably be targeted to these under-researched levels of analysis. Third, positivist empirical studies will add the greatest value if they focus on antecedents to privacy concerns and on actual outcomes. In that light, we recommend that researchers be alert to an overarching macro model that we term APCO (Antecedents → Privacy Concerns → Outcomes).

1,322 citations

Journal ArticleDOI

[...]

TL;DR: In this article, the authors explore the various structural forces that warp the bargaining process of criminal and civil bargainers, including overconfidence, denial, discounting, risk preferences, loss aversion, framing, and anchoring.
Abstract: Plea-bargaining literature predicts that parties strike plea bargains in the shadows 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, causing them to diverge from trial outcomes. Part I of this Article explores the various structural forces that warp plea bargains. Agency costs, attorney compensation and workloads, resources, sentencing and bail rules, and information deficits all skew bargaining. In addition, psychological biases and heuristics warp judgments. Part II applies recent research from behavioral law and economics and cognitive psychology to critique plea bargaining. Overconfidence, denial, discounting, risk preferences, loss aversion, framing, and anchoring all affect bargaining decisions. Skilled lawyers can partly counteract some of these problems, but they can also overcompensate. The oversimplified shadow-of-trial model of plea bargaining needs to be supplemented by a structural-psychological perspective. On this perspective, uncertainty, money, self-interest, and demographic variation greatly influence plea bargains. Part III explores how to respond to the various structural and psychological influences that warp plea bargains. Reforming systems of defense counsel, bail rules, and the structure of sentencing rules, and increasing use of mediators and judges in bargaining could ameliorate some of these influences. Other problems, such as demographic variations in psychology, are very difficult to correct. These influences cast light on how civil and criminal bargaining differ in important respects.

245 citations

Posted Content

[...]

TL;DR: The success of prediction markets offers a set of lessons for increasing the likelihood that groups can obtain the information that their members have as mentioned in this paper, which can be used to increase the likelihood of revealing privately held knowledge.
Abstract: For multiple reasons, deliberating groups often converge on falsehood rather than truth. Individual errors may be amplified rather than cured. Group members may fall victim to a bad cascade, either informational or reputational. Deliberators may emphasize shared information at the expense of uniquely held information. Finally, group polarization may lead even rational people to unjustified extremism. By contrast, prediction markets often produce accurate results, because they create strong incentives for revelation of privately held knowledge and succeed in aggregating widely dispersed information. The success of prediction markets offers a set of lessons for increasing the likelihood that groups can obtain the information that their members have.

219 citations

Posted Content

[...]

TL;DR: The Implicit Association Test (IAT) as mentioned in this paper has been used to find that most people have an implicit and unconscious bias against members of traditionally disadvantaged groups, which poses a special challenge for antidiscrimination law because it suggests the possibility that people are treating others differently even when they are unaware that they are doing so.
Abstract: Considerable attention has been given to the Implicit Association Test (IAT), which finds that most people have an implicit and unconscious bias against members of traditionally disadvantaged groups. Implicit bias poses a special challenge for antidiscrimination law because it suggests the possibility that people are treating others differently even when they are unaware that they are doing so. Some aspects of current law operate, whether intentionally or not, as controls on implicit bias; it is possible to imagine other efforts in that vein. An underlying suggestion is that implicit bias might be controlled through a general strategy of debiasing through law.

218 citations