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.
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.