Behavioral Economics in Plea-Bargain Decision-Making: Beyond the Shadow-of-Trial Model

Lauren Clatch, Eugene Borgida

Research output: Contribution to journalArticlepeer-review

2 Scopus citations


Legal scholars have long assumed that plea bargains are contracts negotiated between rational actors who adhere to the dictates of the normative shadow-of-Trial model. The two key features that rational actors presumably haggle over in the shadow of trial are the criminal charge (and associated sentence) and the probability of trial conviction. The behavioral economics theory of discounting, however, offers a theoretical foundation for testing the shadow-of-Trial model. This article summarizes findings from experimental discounting studies in behavioral economics and psychological science-showing that these paradigms can be successfully applied to the plea-bargaining decision context wherein the likelihood of trial is uncertain and delayed, and the plea bargain is relatively certain and immediate. We suggest that the implications of applying discounting to plea bargaining are three-fold: (1) empirical evidence suggests that the shadow-of-Trial model is too narrow; (2) the discounting of non-monetary losses may involve slightly different psychological processes than contexts involving monetary outcomes; and (3) probability of conviction and delay until trial constitute situational features that elicit guilty pleas despite a defendant's factual innocence.

Original languageEnglish (US)
Pages (from-to)349-383
Number of pages35
JournalReview of Law and Economics
Issue number2
StatePublished - Jul 1 2021

Bibliographical note

Publisher Copyright:
© 2021 Walter de Gruyter GmbH, Berlin/Boston.


  • behavioral economics
  • discounting
  • plea bargaining
  • shadow-of-Trial model


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