Note

The Writing on the Wall: Miranda’s “Prior Criminal Experience” Exception

The Miranda decision requires that police read suspects a set of warnings to ensure that the suspect knows his rights and only waives those rights “voluntarily” and “knowingly.” This Note proposes a “prior criminal experience” exception to Miranda, by which an incriminating statement made outside Miranda may be admissible at trial in certain circumstances. Under the new view of the law, just as today, law enforcement agents would be required to administer Miranda warnings to every suspect before custodial interrogation. However, should a law enforcement officer negligently fail to give the warnings, use of an incriminating statement against a suspect in court would not be barred absolutely. Rather, the statement might be admissible depending on the suspect’s knowledge of his rights, gained through prior criminal experience.

Essentially, the trial court would use a totality-of-circumstances test to determine if the suspect knew his rights at the time of his most recent statement to police. Compulsion still would be presumed in the absence of Miranda warnings, so the burden would fall on the government to show that the defendant had the constitutionally required knowledge. If the court finds the suspect had the requisite knowledge, a police officer’s negligence in not Mirandizing him is immaterial, and the court will allow the confession into evidence. If the court finds that the suspect does not have knowledge of his rights, the prong is not met, and the court will exclude the incriminating statement. The “prior criminal experience” exception only applies to the “knowledge” prong of Miranda; the voluntariness inquiry would not change. The exception ensures that courts do not allow the constitutionally required Miranda warnings to give an advantage to criminal suspects where none is needed.

Modernizing the Critique of Per Diem Pain and Suffering Damages

Outside the legal academy, the debate over tort reform rages on. In the political arena, advocates on both sides of the aisle often use empty rhetoric in an attempt to persuade voters that tort reform as a whole is “good” or “bad.” Of course, this over-simplistic view of tort reform does not take into account the multifaceted nature of tort law. This Note examines one method of calculating noneconomic damages and attempts to provide a theoretical justification for why a plaintiff’s use of the per diem (or time-unit) method to compute future pain and suffering damages cannot be justified under any reasonable theory. The debate over the per diem method to calculate these damages has largely stagnated in the past forty years. During this same time period, nothing less than a revolution has occurred in the understanding of pain and pain management therapy in medical and psychological fields. However, these advances have not been incorporated into the per diem discussion. This Note analyzes and introduces the “cognitive-behavioral treatment” (CBT) model of pain to the legal literature with the hope of supplying a theoretical foundation for why the per diem argument should be impermissible in the many jurisdictions that allow such a method. The basic flaw of the time-unit perspective is that it improperly assumes a constant dollar unit for future pain and suffering without discounting for either future advances in pain management therapy or an individual’s future and likely ability to psychologically and physically cope with chronic pain. 

Information Markets: Using Market Predictions to Make Today’s Decisions

Presidential betting markets predict election outcomes more
accurately than polls because of their ability to effectively aggregate information. Empirical research and theory indicates that the result extends to other contexts. Betting markets, more formally called information markets, provide accurate predictions about future product sales, box office receipts, and other future events. Moreover, market predictions generally outperform other prediction mechanisms. This paper argues that empirical research and theory indicates that we should use information markets’ predictive power to make administrative decisions. In addition, it presents a model information market designed to help policy makers evaluate policies prior to their implementation by providing policy makers information about the policies’ effects in the form of market predictions. To design such a market, it is necessary to determine how the market should pay off bettors when the agency does not implement a policy because the market predicts it will have an adverse effect. The problem is that bets pay off based on the outcome of an event, but when the policy makers decide not to implement a policy, the policy has no effect and thus it is unclear how to compensate bettors. This paper shows that through clever market design it is possible to return the market price of a bet, prior to an agency’s decision not to implement the policy on which the bet depends, without fear of market manipulation. Consequently, even in cases where using market predictions to make administrative decisions appears problematic, it is possible.

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