This symposium poses an interesting question: What's left of the law in the wake of ADR? I will address this question in the context of the criminal justice system in the United States. As with civil cases, few criminal cases go to trial. Negotiated agreements through plea bargaining have been the predominate form of case resolution since at least the mid-twentieth century. As criminal caseloads rose, trial rates decreased, as they did for civil cases. Today, only a small percentage of criminal cases go to trial. Plea bargaining, as with other forms of alternative dispute resolution, is an informal process that operates largely outside the formal legal system. Plea bargains are rarely negotiated on the record in open court. Instead, they are usually negotiated in private between the defense and the prosecution and only announced in open court and on the record once the deal is final and agreed to by all the parties. Does this mean the law is absent in the process? And, does plea bargaining work to undermine the formal criminal codes in the United States? The simple answer is that the formal criminal law provides the framework for how plea bargaining works and also acts as a substantial impediment to serious plea bargaining reform, an impediment that is often not recognized as scholars and practitioners focus on the fact that the plea bargaining process itself operates with few rules and constraints.
Cynthia Alkon, What's Law Got to Do With It? Plea Bargaining Reform after Lafler and Frye, 7 Y.B. Arb. & Mediation 1 (2015).