Issue 1

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.

State Redistricting Law: Stephenson v. Bartlett and Judicial Promotion of Electoral Competition

This Note attempts to answer the question, “What can state courts do to solve problems in the legislative redistricting process?” To answer this question, the Note examines one recent case from the North Carolina Supreme Court, Stephenson v. Bartlett. At the time the suit was filed, the North Carolina redistricting process was already subject to many state and federal constitutional restraints, as well as the federal statutory restraints of the Voting Rights Act. Relying on a dubious interpretation of the state constitution’s equal protection clause and an elevation of “traditional redistricting principles” to the level of a constitutional mandate, the North Carolina Supreme Court took the opportunity to create even more restraints on legislative redistricting process. Whitaker examines possible justifications for the opinion, and after rejecting textualist, purposivist and partisan political explanations, explains the opinion as an attempt by the judiciary to increase electoral competition by reducing the discretion of the state legislature over redistricting.

Halpin on Dworkin’s Fallacy: A Surreply

In my recent essay, Dworkin’s Fallacy, or What the Philosophy of Language Can’t Teach Us about the Law, 89 Va. L. Rev. 1897 (2003), I argued that a particular confusion between linguistic and legal practices – evident most notably in the work of Ronald Dworkin – causes legal theorists to misderive jurisprudential conclusions from semantic premises. Because much, if not most, jurisprudential interest in the philosophy of language is motivated by Dworkin’s fallacy, I argued that the philosophy of language does not generally have jurisprudential consequences. But in the conclusion to my essay I identified three areas where Dworkin’s fallacy does not apply and the philosophy of language has genuine, albeit very limited, consequences for the philosophy of law. 

Halpin argues that I neglected a number of important connections between the two disciplines. But the connections Halpin describes are in fact those that I identified as genuine in the conclusion to my essay. What is more, Halpin appears to agree with me that these connections, although genuine, are very limited, in the sense that they yield few substantive jurisprudential consequences. Halpin sees a disagreement between us on these matters only because he misunderstands the confusion of linguistic and legal practices at issue in Dworkin’s fallacy.

But Halpin does argue for a connection between the philosophies of language and law that is different from those I entertained in my essay. I was interested in whether the philosophy of language can yield conclusions in the philosophy of law. Halpin appears to agree with me that it cannot. But Halpin argues that the philosophy of law can yield conclusions in the philosophy of language. Although Halpin’s argument here is suggestive, it is insufficiently detailed to allow me to come to a firm conclusion about its merits.

In my essay I offered Dennis Patterson’s legal theory, with Dworkin’s, as examples of Dworkin’s fallacy in action. Halpin argues that Patterson’s theory does not suffer from Dworkin’s fallacy. I end my response to Halpin with a defense of my critique of Patterson, by expanding what was admittedly a compressed argument in the original. 

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