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Bargaining with Double Jeopardy

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  • Saul Levmore
  • Ariel Porat

Abstract

Virtually every burden of proof is influenced by a rule regarding relitigation. In criminal law, the prosecutor is prevented from repeatedly drawing from the urn, as it were, by the double-jeopardy rule, which reinforces the beyond-a-reasonable-doubt standard. We suggest that if law were to permit defendants to waive double-jeopardy protection, private and social benefits might follow. The benefits derive from the likelihood that prosecutors--like most people who can take a test but once--overinvest in preparation. Somewhat similarly, though far afield, deficit spending by a legislature might be linked to the fact that spending proposals that are rebuffed can be retested or revisited. We contemplate offering defendants the option of waiving their double-jeopardy protection in anticipation of reduced prosecutorial investment. Innocent defendants might then be more likely to waive, in which case there will be socially beneficial sorting of defendants.

Suggested Citation

  • Saul Levmore & Ariel Porat, 2011. "Bargaining with Double Jeopardy," The Journal of Legal Studies, University of Chicago Press, vol. 40(2), pages 273-293.
  • Handle: RePEc:ucp:jlstud:doi:10.1086/660840
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    References listed on IDEAS

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    1. Ben-Shahar Omri, 2005. "Legal Durability," Review of Law & Economics, De Gruyter, vol. 1(1), pages 15-53, April.
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