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56 Cornell L. Rev. 57 (1970-1971)
Model of Criminal Process Game Theory and Law

handle is hein.journals/clqv56 and id is 72 raw text is: A MODEL OF CRIMINAL PROCESS:
Robert L. Birminghamjt
Early ordnance was prized for both destructive and aesthetic prop-
erties. During the sixteenth century, Italian craftsmen, although aware
of the attendant sacrifice of ballistic efficiency, complemented the en-
graving with which they adorned the field pieces they manufactured by
decorating the shot itself.' Much discussion of criminal law is analogous
to the Italian cannonball; analytic embellishment adds richness in
detail but often conceals crucial structural interrelationships. In this
article I attempt to use the techniques of game theory to isolate minimal
attributes of problems familiar in criminal law. In the first section I
construct a model indicating the impact of the criminal law on the
actions of prospective malefactors and, by extension, on the welfare of
society as a whole; in subsequent sections I explore the implications
of this model for public policy. My hope is to achieve clarity through
t Assistant Professor of Law, Indiana University. A.B. 1960, J.D. 1963, Ph.D. 1967,
University of Pittsburgh; LL.M. 1965, Harvard University.
at 43 (1965).
2 Introductory discussion of any field perhaps unfamiliar to the reader is hampered
by the propensity of those working in it to develop a specialized vocabulary that prevents
accurate definition of any single term without appeal to other terms that are equally
unknown; successful explication thus necessarily tempers obscurity with imprecision.
Shubik, whose stature as a scholar sanctions expository oversimplification, has provided
probably the best preliminary description of the work on which I rely:
Game theory is a method for the study of decision making in situations of
conflict. It deals with human processes in which the individual decision-unit is
not in complete control of other decision units entering into the environment.
It is addressed to problems involving conflict, cooperation, or both, at many levels.
The decision-unit may be an individual, a group, a formal or an informal
organization, or a society....
The essence of a game in this context is that it involves decision makers
with different goals or objectives whose fates are intertwined. The individuals are
in a situation in which there may be many possible outcomes with different values
to them. Although they may have some control which will influence the outcome,
they do not have complete control ....
... The individual must consider how to achieve as much as is possible,
taking into account that there are others whose goals differ from his own and
whose actions have an effect on all.. . . He must adjust his plans not only to

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