Constitutional Retroactivity in Criminal Procedure
The “watershed” doctrine gives prisoners a constitutional basis to reopen their cases based on a new due process protection that would have made a difference had it been announced before their appeals were exhausted. The Supreme Court has imposed nearly impossible conditions, however, for any new rule of criminal procedure to apply retroactively to a final conviction or sentence. No such rule can be backdated unless it enhances not only the accuracy of criminal verdicts, but also “our very understanding of the bedrock” tenets of fairness in criminal trials. The Court refers to rules that satisfy both these requirements as “watersheds.” In the quarter-century since it established this doctrine, the Court has denied the accuracy-and-fairness credentials to every one of the dozens of new rules it has characterized as procedural and whose watershed status it has considered. Scholarly consensus accordingly casts watershed doctrine as exceptional, esoteric, and insignificant.
This Article challenges that consensus. We use the dynamic concentration model of game theory to show how watershed doctrine counteracts the structural undersupply of constitutional due process rules. The Court maintains too small a caseload to scrutinize more than a fraction of due process violations or specify every such procedural demand. That institution is accordingly ill equipped to rein in the punitive tendencies of elected state judges who owe their jobs to electorates that tend to value crime prevention more than defendants’ rights. Watershed doctrine potentially mitigates this enforcement problem by creating an extreme, if low-probability, threat of repealing scores of final convictions. By issuing a single new watershed rule, the Court can mandate sweeping retrials or release of prisoners into the public. This existential threat provides an overlooked reason why state courts might insulate their states’ criminal procedures against Supreme Court incursions. To achieve the desired insulation, state courts can create constitutional safe harbors by trying to align their procedures with watersheds they project the Court might announce in the future. Indirect support for this theory comes from our comprehensive study of the hundreds of watershed decisions that state courts have issued since 1989. We narrowed this list down to the 228 controlling decisions about whether to backdate distinct due process rules across different jurisdictions. Our analysis found that 27, or more than one in nine, of these decisions inflate the retroactivity rights of criminal defendants.
Constitutional Retroactivity in Criminal Procedure, 91 Washington Law Review 463-514 (2016) (with Dov Fox) download
Corrupt Intentions: Bribery, Unlawful Gratuity, and Honest-Services Fraud
This Article develops an economic approach to the ascertainment of the requisite intent for bribery, unlawful gratuity, and honest-services fraud. Given the crimes’ inherently transactional and private nature, courts should elicit the parties’ intent from the economics of their exchange. When the exchange yields both sides a benefit not available on the market, then--depending on the exchange's particulars--it constitutes bribery, unlawful gratuity, or honest-services fraud. Based on this simple insight, I criticize the Supreme Court’s jurisprudence of criminal corruption.
Corrupt Intentions: Bribery, Unlawful Gratuity, and Honest-Services Fraud, 75 Law & Contemporary Problems 61-81 (2012) download
The Distortionary Effect of Evidence on Primary Behavior In this Essay, we analyze how evidentiary concerns dominate actors’ behavior. Our findings offer an important refinement to the conventional wisdom in law and economics literature, which assumes that legal rules can always be fashioned to achieve socially optimal outcomes. We show that evidentiary motivations will often lead actors to engage in socially suboptimal behavior when doing so is likely to increase their likelihood of prevailing in court. Because adjudicators must base decisions on observable and verifiable information—or, in short, evidence—rational actors will always strive to generate evidence that can later be presented in court and increase their chances of winning the case regardless of the cost they impose on third parties and society at large. Accordingly, doctors and medical institutions will often refer patients to undertake unnecessary and even harmful examinations just to create a record that they went beyond the call of duty in treating them. Owners of land and intellectual property may let harmful activities continue much longer than necessary just to gather stronger evidence concerning the harm they suffer. And even the police will often choose to allow offenders to carry out crimes in order to improve the chance of a conviction. The effect we identify is pervasive. It can be found in virtually all areas of the law. Furthermore, there is no easy way to eliminate or correct it. It should be noted, however, that the evidentiary phenomenon we discuss also has a positive side effect: it reduces adjudication costs for judges and juries and improves the accuracy of court processes. In some cases, this improvement will exceed the social cost stemming from actors’ suboptimal behavior. In other contexts, however, the social cost will far outweigh the benefit.
The Distortionary Effect of Evidence on Primary Behavior, 124 Harvard Law Review 518-548 (2010) (with Gideon Parchomovsky) download
THE ANTI-POOLING JUSTIFICATION OF THE FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION (THE RIGHT TO SILENCE)
The right to silence has a solid consequentialist justification. The conventional perception of this right -- that it impedes the search for truth and thus helps only criminals -- is mistaken. The right to silence helps triers of fact to distinguish between innocent and guilty defendants. A guilty suspect's self-interested response to questioning can impose externalities, in the form of wrongful conviction, on innocent suspects and defendants who tell the truth but cannot corroborate their stories. Absent the right to silence, guilty suspects and defendants would make false exculpatory statements if they believed that their lies were unlikely to be exposed. Aware of these incentives, triers of fact would rationally discount the probative value of uncorroborated exculpatory statements at the expense of innocent defendants who could not corroborate their true exculpatory statements. Because the right to silence is available, innocent defendants tell the truth while guilty defendants rationally exercise the right when they fear that lying is exceedingly risky. Thus, guilty defendants do not pool with innocents by lying; and as a result, triers of fact do not wrongfully convict innocent defendants.
The Right to Silence Helps the Innocent: A Game-Theoretic Analysis of the Fifth Amendment Privilege, 114 Harvard Law Review 430 (2000) (with Daniel Seidmann) download
For my response to the critics of this article, click HERE
STRATEGIC ENFORCEMENT Doctrine and scholarship recognize two basic models of enforcing the law: the comprehensive model, under which law-enforcers try to apprehend and punish every violator within the bounds of feasibility; and the randomized model, under which law enforcers economize their efforts by apprehending a small number of violators and heightening their penalties so as to make violations unattractive. This Article supplements this list of options by developing a strategic model of law enforcement. Under this model, law enforcers concentrate their effort on the worst, or most rampant, violators at a given point in time while leaving all others unpunished. This enforcement strategy will force violators into a cascaded retreat: to avoid detection as one of the worst violators, every individual wrongdoer will bring the level of his unlawful activity down to the point of inconspicuousness—a process that will repeat itself several times to society’s benefit. This Article identifies the circumstances that call for the strategic model’s adoption and illustrates the model’s potential as an enforcement tool in diverse areas of the law that include employment discrimination, election districting, and copyright protection.
Strategic Enforcement, 95 Minnesota Law Review 9-58 (2010) (with Margaret H. Lemos) download
Ambiguity aversion is a person's rational attitude towards probability's indeterminacy. When a person is averse towards such ambiguities, he increases the probability of the unfavorable outcome to reflect that fear. This observation is particularly true about a criminal defendant who faces a jury trial. Neither the defendant nor the prosecution knows whether the jury will convict the defendant. Their best estimation relies on a highly generalized probability that attaches to a broad category of similar cases. The prosecution, as a repeat player, is predominantly interested in the conviction rate that it achieves over a long series of cases. It therefore can depend on this general probability as an adequate predictor of this rate. The defendant only cares about his individual case and cannot depend on this general probability. From the defendant's perspective, his individual probability of conviction is ambiguous. The defendant consequently increases this probability to reflect his fear of that ambiguity. Because most defendants are ambiguity-averse, while the prosecution is not, the criminal process systematically involves and is thoroughly affected by asymmetric ambiguity-aversion.
Asymmetric ambiguity-aversion foils criminal justice. The prosecution can exploit it by forcing defendants into plea bargains that are both inefficient and unfair. Because plea bargain is a predominant method of case-disposition across the United States, this exploitation opportunity is particularly pernicious. The legal system ought to eliminate it.
Two Fifth Amendment doctrines -- the rule against double jeopardy and the grand jury review of indictments -- have the effect of mitigating this problem. The rule against double jeopardy sets a pro-defendant system of asymmetric rights to appeal. This system reduces the probability of conviction for all defendants, regardless of the merits. This probability reduction offsets -- but not eliminates -- the upward adjustment that an ambiguity-averse defendant introduces into his probability of conviction. Grand jury review disambiguates the defendant's probability of conviction when he is informed about the grand jurors' voting score. This disambiguation is only partial, though, because grand jurors are authorized to indict upon mere showing of a "probable cause."
The prevalent constitutional doctrine should therefore be modified by giving a defendant the right to choose between a bench trial and a trial by jury. Judges are repeat institutional players that credibly commit themselves to reasons for decisions that are evenhanded, known and institutionally approved. This commitment is induced not only by the judges' fear of reversal and other career-related repercussions, but also by the defendant's constitutional entitlement to a trial by jury. For judges, jury trial is a time-consuming and effort-intensive process with virtually no career-enhancing returns. Judges therefore strongly prefer a bench trial over a trial by jury. To actualize this preference, judges need systematically to deliver evenhanded decisions that follow the institutionally approved reasons. This makes judges' decisions predictable. The defendant's probability of being convicted by a judge in a bench trial thus becomes unambiguous, which neutralizes the prosecution's ambiguity-exploiting pressure in plea bargaining.
Empirical data confirm these findings. Specifically, they identify three major trends. First, bench trials are prevalent in jurisdictions featuring high trial rates, generated by a non-meticulous selection of cases for prosecution. Second, the rate of acquittals in bench trials is much higher than in trials by jury. The defendants' ambiguity-aversion is the most plausible explanation of these trends. Defendants with real prospects for acquittal have much to lose and are therefore unwilling to depend upon unpredictable juries. Finally, there is a demand for jury-consulting services and no discernible market for judge-consulting services. Litigants are willing to pay for information predicting the outcomes of jury trials and are generally unwilling to pay for information predicting judges' decisions in bench trials. This leads to the conclusion that ambiguity aversion is particularly problematic in trials by jury.
Ambiguity Aversion and the Criminal Process, 81 Notre Dame Law Review 1495 (2006) (with Uzi Segal) download
MEDIATING RULES IN CRIMINAL LAW
This article challenges the conventional divide between substantive criminal law theory, on the one hand, and evidence law, on the other, by exposing an important and unrecognized function of evidence rules in criminal law. Throughout the criminal law, special rules of evidence work to mediate conflicts between criminal law’s deterrence and retributivist goals. They do this by skewing errors in the actual application of the substantive criminal law to favor whichever theory has been disfavored by the substantive rule itself. The mediating potential of evidentiary rules is particularly strong in criminal law because the substantive law’s dominant animating theories – deterrence and retributivism – respond asymmetrically to the workings of those rules. We analyze the features of “mediating rules,” explore their effects across a range of substantive areas, and offer a tentative normative assessment of their role in the criminal law system.
Mediating Rules in Criminal Law, 93 Virginia Law Review 1197 (2007) (with Richard A. Bierschbach) download