Article

Habeas Settlements

Why is it that criminal cases nearly always settle, but habeas corpus cases do not? The vast majority of criminal cases are resolved by guilty pleas, without a trial. But it is the rare habeas petition that is resolved out of court, rather than litigated to completion. This is a significant puzzle because criminal and habeas corpus cases have a lot in common. They involve the same parties and the same attorneys. They also involve similar bargains: the defendant or prisoner receives a shorter, more certain sentence and the prosecutor or government attorney avoids having to litigate a criminal or habeas case, respectively. This is an important puzzle because active settlement of habeas cases could reduce habeas caseloads by nearly one-third. Although most habeas petitions are sure-losers under current law, I estimate that at least 28 percent are sufficiently credible—or costly for the government to defend—that they warrant settlement.

I attempt to resolve this puzzle and propose a series of reforms to pave the way for more active (but safe) settlement of habeas cases. Most notably, I propose that Rule 35 of the Federal Rules of Criminal Procedure be modified to permit courts to amend sentences upon a habeas settlement, regardless of whether the modified sentence is within the sentencing guideline range for the prisoner’s offense. And, to ensure that any growth in habeas settlements is not at the expense of prisoners’ rights, I propose that courts be required to conduct Rule 11-type colloquies with prisoners before accepting habeas settlements.

Property as Entrance

One of the central values of private ownership in liberal property thought is its freedom-guaranteeing function. The precise mechanism by which private property rights accomplish this guarantee, however, is frequently left unexplored. When theorists discuss the issue, they often identify property’s liberty-securing quality with the power that property confers upon its owner to exit from society into the protective cocoon of his stuff. In its most ambitious forms, this mechanism of “property as exit” draws strength from an implicit assumption that people are the sorts of beings that can withdraw from social relations into the isolation of their property. But there are reasons to think that withdrawal would be very costly for most people. As a consequence, the power of property to facilitate exit may be substantially weaker than is often assumed. Moreover, scholars’ affinity for property’s isolating function has obscured the degree to which property facilitates “entrance” by tying individuals together into social groups.

Common Law Disclosure Duties and the Sin of Omission: Testing the Meta-theories

Since ancient times, legal scholars have explored the vexing question of when and what a contracting party must disclose to her counterparty, even in the absence of explicit misleading statements. This fascination has culminated in a set of claims regarding which factors drive courts to impose disclosure duties on informed parties. Most of these claims are based on analysis of a small number of non-randomly selected cases and have not been tested systematically. This article represents the first attempt to systematically test a number of these claims using data coded from 466 case decisions spanning over a wide array of jurisdictions and covering over 200 years. 

The results are mixed. In some cases it appears that conventional wisdom is correct. For example, our data support the claim that courts are more likely to require disclosure of latent, as opposed to patent, defects. In addition, courts are more likely to require full disclosure between parties in a fiduciary or confidential relationship. On the other hand, our results cast doubt on much of the conventional wisdom regarding the law of fraudulent silence. Indeed, our results challenge ten of the most prominent theories that have been asserted to explain when courts will require disclosure. We find that courts are no more likely to impose disclosure duties when the information is casually acquired as opposed to deliberately acquired and that unequal access to information by the contracting parties is not a significant factor that drives courts to require disclosure. We do find, however, that when these two factors are present simultaneously courts are significantly more likely to force disclosure. Perhaps most interestingly, although it is generally understood that courts have become more likely to impose disclosure duties over time, we find that courts actually have become less likely to require disclosure over time.  

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