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short history of plea bargaining
Yale Law School

Yale Law School Legal Scholarship Repository
Faculty Scholarship Series

Yale Law School Faculty Scholarship

1-1-1979

Understanding the Short History of Plea
Bargaining
John H. Langbein
Yale Law School

Follow this and additional works at: http://digitalcommons.law.yale.edu/fss_papers
Part of the Civil Procedure Commons
Recommended Citation
Langbein, John H., "Understanding the Short History of Plea Bargaining" (1979). Faculty Scholarship Series. Paper 544. http://digitalcommons.law.yale.edu/fss_papers/544 This Article is brought to you for free and open access by the Yale Law School Faculty Scholarship at Yale Law School Legal Scholarship Repository. It has been accepted for inclusion in Faculty Scholarship Series by an authorized administrator of Yale Law School Legal Scholarship Repository. For more information, please contact julian.aiken@yale.edu.

UNDERSTANDING THE SHORT HISTORY
OF PLEA BARGAINING
JOHN H. LANGBEIN
As late as the eighteenth century, ordinary jury trial at common law was a judge-dominated, lawyer-free procedure conducted so rapidly that plea bargaining was unnecessary. Thereafter, the rise of adversary procedure and the law of evidence injected vast complexity into jury trial and made it unworkable as a routine dispositive procedure. A variety of factors, some quite fortuitous, inclined nineteenthcentury common law procedure to channel the mounting caseload into nontrial plea bargaining procedure rather than to refine its trial procedure as contemporary Continental legal systems were doing.

Alschuler (supra) has undertaken to document that plea bargaining was unknown during most of the history of the common law. Only in the nineteenth century does he find significant evidence of the practice in either England or America.
These findings beckon to the legal historian for explanation. In modern times, plea bargaining has become the primary procedure through which we dispose of the vast
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