The shadow of the law refers to settling cases or making plea bargains in a way that takes into account what would happen at trial. It has been argued that criminal trials resolve such a small percentage of criminal cases "that their shadows are faint and hard to discern."[1]

The phrase was coined by law professors Robert H. Mnookin and Lewis Kornhauser (when they were colleagues at the University of California, Berkeley), and was popularized by them in a 1979 law review article; it has since become common in sociolegal literature.[2][3]

Today, Mnookin and Kornhauser's 1979 article is widely recognized as a landmark article "which legitimized the study of negotiation within the legal academy" by "tethering bargaining to jurisprudence".[4] A 2012 study determined that as of that year, it was the nineteenth most-cited law review article of all time.[5]

References

  1. ↑ Stephanos Bibas (July 2004). "Plea Bargaining outside the Shadow of Trial". Harvard Law Review. 117 (8): 2463–2547.
  2. ↑ Robert H. Mnookin and Lewis Kornhauser, "Bargaining in the Shadow of the Law: The Case of Divorce", Yale Law Journal, Vol. 88, No. 5, Dispute Resolution (Apr. 1979), pp. 950–997.
  3. ↑ Chen, Ming Hsu (2018). "Regulatory Rights: Civil Rights Agencies, Courts, and the Entrenchment of Language Rights". In Dodd, Lynda G. (ed.). The Rights Revolution Revisited: Institutional Perspectives on the Private Enforcement of Civil Rights in the U.S. Cambridge: Cambridge University Press. pp. 100–122. ISBN 9781316730713. Retrieved 2 January 2021. See fn. 41 at p. 110.
  4. ↑ Tippett, Elizabeth C. (2021). "Bargaining in the Shadow of the Law: The Case for ADR as a Field of Study". In Schneider, Andrea Kupfer; Hinshaw, Art; Cole, Sarah Rudolph (eds.). Discussions in Dispute Resolution: The Foundational Articles. Oxford: Oxford University Press. pp. 9–12. ISBN 9780197513248. Retrieved December 16, 2023.
  5. ↑ Mnookin, Robert (2021). "Bargaining in the Shadow of the Law Reassessed". In Schneider, Andrea Kupfer; Hinshaw, Art; Cole, Sarah Rudolph (eds.). Discussions in Dispute Resolution: The Foundational Articles. Oxford: Oxford University Press. pp. 22–26. ISBN 9780197513248. Retrieved December 16, 2023.
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