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.
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