Six Flags Syndrome: Price Discrimination In Plea Bargaining

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7 Responses

  1. Kate Litvak says:

    I have no view on the crim part, but you seem to be mistaken on the Six Flags part. The thing about customers “doing their homework” isn’t about consumer sophistication at all. Clipping coupons doesn’t exactly require much sophistication. That homework thing is about the consumer’s willingness to spend time and effort looking for relevant coupons. That is, it’s about the consumer’s opportunity cost of time, which is a very good predictor of the willingness to pay, which is what price discriminators are trying to estimate. Totally harmless.

  2. The prosecuter asking for longer terms is part of our advisarial process. Far from perfect but what we have.

    However, doing research on sentences should be easier. Right now the only way to get that information is through experience or asking a friend.

  3. Jason Mazzone says:

    I have proposed using “plea juries” to review plea bargains and guilty pleas for, among other things, fairness. See “The Waiver Paradox,” 97 Nw. U.L. Rev. 801, 872-878 (2003). Amazingly, nobody has adopted my proposal (yet).

  4. Liz L says:

    It sounds like this topic could be explored in a practical public law course: the ins and outs of DA/PD practice, beyond first year criminal procedure/law courses. The negotiation course where I attend law school is focused on civil cases (transactional and dispute resolution contexts). Maybe it’s covered in externships??

    Law students entering this area should have some practical background in negotiating sentences. This would (ideally) reduce the chance that a defendant will serve extra time b/c their attorney’s negotiation skills were not up to snuff.

  5. Christopher Cooke says:

    The problem that you highlight is that we treat criminal law cases like civil law cases, and use the same negotiating tactics, when criminal law should also be about ensuring justice is served.

    Perhaps we should try to require, via state bar ethics changes, or state or local law changes, that all felony plea bargains are reviewed for “fairness” by a supervising prosecutor not associated with the case. Or, we could have a judge (not the sentencing judge), do the same thing.

    At first blush, my reaction is that I would not be in favor of plea “juries” as one poster suggested, because (1) they are not sophisticated enough to know whether one defendant is pleading guilty and accepting a much worse sentence, than what other defendants typically receive; and (2) it would drastically increase the use of juries, at a time when we already have trouble convincing people to serve on them, due to the costs imposed.

  6. Scott Moss says:

    I agree with Kate on Six Flags practicing textbook “price discrimination” to charge less to those willing to spend time finding/clipping coupons. That’s an effort to get a premium price (i.e., “full” price) from customers who are more affluent, busier, or otherwise less willing to condition their amusement park attendance on their finding coupons.

    I’d say plea bargaining is not the same phenomenon, but almost the exact opposite. Whereas coupon-clipping gives the LESS affluent a price break (not for moral reasons, just because they’ll pay above cost but not full price), plea bargaining gives a break to the MORE affluent (i.e., those who can afford top defense lawyers and/or are more personally sophisticated).

    This is why I’m untroubled by retail price discrim but very troubled by plea bargaining disparities.

  7. Paul Gowder says:

    I kind of wonder, about retail price discrimination, why it doesn’t always lead to market entry by people competing on price. Sometimes it does: consider the Saturn marketing strategy, which explicitly trumpets the fact that it won’t come down on price. Presumably, these prices are lower (for a given quality) than the equivalent opening offer for another car.

    Similarly, there are discount stores that refuse to hold sales, on the claim that their prices are always low (honest), etc. They seem to be successful.

    Yet (as far as I know) this doesn’t happen in all markets. For example, I know of no “no sale/coupon” consumer electronics retailer, and have never heard of a “real price” competitor to six flags. Why is that?

    The absence of a competitive check is perhaps another reason why we should be worried about criminal price discrimination. It’s not as if the prosecutor next door can jump in and say “here’s my REAL price!”