One offshoot of our discussions about the various Trump indictments has been a discussion about the U.S. legal system in general. In particular, we’ve discussed the costs to individuals of defending themselves in criminal (and civil) cases. See, for example, Rudy Giuliani.
The high cost of mounting a defense appears to generate a number of game-theory approaches to pursuing criminal and civil cases:
- (Implicitly) using the high cost of defense as a cudgel to elicit a plea bargain, potentially from parties who are actually innocent, but cannot afford an effective defense.
- Effectively punishing a defendant (via economic cost) who is ultimately found not guilty of the crime.
The questions we might address could include:
- Cost of legal representation: Are public defenders (in general) a satisfactory substitute for “paid” attorneys? If not, how can the current system realistically be adjusted to make it so?
- Should co-conspirators be restricted somehow in their ability to pay for each others’ defenses? (See, for example, Walt Nauta)
- “Entry” into the criminal legal system. Is it too easy for a prosecutor to obtain an indictment from a grand jury? (“Easy” indictments put the accused on a path to substantial economic costs in mounting a defense.)
- Is the grand jury process otherwise working well? poorly?
- Civil cases. What about civil cases, in which those with substantial resources (like large corporations) can often overwhelm individuals (whether they are plaintiffs or defendants)?
- How well do class action lawsuits address this issue?
- What other “playing-field-levelers” might be employed?
- Is arbitration a suitable way to reduce court costs in civil cases?
- How (if at all) should enforced arbitration provisions in contracts be regulated?
I’m sure there will be more to cover (there always is).
See you next Monday.