The most famous case in administrative law, Chevron U.S.A. v. Natural Resources Defense Council, Inc., has come to be seen as a counter-Marbury, or even a McCulloch v. Maryland, for the administrative state. But in the last period, new debates have broken out over Chevron Step Zero — the initial inquiry into whether Chevron applies at all. These debates are the contemporary location of a longstanding dispute between Justice Scalia and Justice Breyer over whether Chevron is a revolutionary decision, establishing an across-the-board rule, or instead a mere synthesis of preexisting law, inviting a case-by-case inquiry into congressional instructions on the deference question. In the last decade, Justice Breyer’s case-by-case view has enjoyed significant victories. Two trilogies of cases — one explicitly directed to the Step Zero question, another implicitly so directed — suggest that the Chevron framework may not apply (a) to agency decisions not preceded by formal procedures and (b) to agency decisions that involve large-scale questions about agency authority. Both of these trilogies threaten to unsettle the Chevron framework, and to do so in a way that produces unnecessary complexity for judicial review and damaging results for regulatory law. These problems can be reduced through two steps. First, courts should adopt a broader understanding of Chevron’s scope. Second, courts should acknowledge that the argument for Chevron deference is strengthened, not weakened, when major questions of statutory structure are involved.
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Predictive Decisionmaking
In this Article, Professor Abramowicz identifies a regulatory strategy that he calls “predictive decisionmaking” and provides a framework for assessing it. In a predictive decisionmaking regime, public or private decisionmakers make explicit predictions, often of future legal decisions, rather than engage in normative analysis. Several scholars, particularly in recent years, have offered proposals that fit within the predictive decisionmaking paradigm, but have not noted the connection among these proposals. The Article highlights four different mechanisms on which predictive decisionmaking regimes may rely, including predictive standards, accuracy incentives, partial insurance requirements, and information markets. After identifying several advantages that predictive decisionmaking strategies may have over nonpredictive alternatives, the Article identifies several potential problems with predictive decisionmaking, and develops a simple analytical framework for assessing predictive decisionmaking proposals.
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.