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Washington and Lee Law Review - Responses


by Harold J. Krent

Adam Gershowitz’s article calling for post-trial plea bargaining in capital cases reasons that governors should commute sentences to life in prison, in exceptional cases, to limit the costs of protracted post-trial litigation over imposition of the death penalty. The commutation power, in his view, resembles pre-trial plea bargaining in that both the state and the criminal defendant can benefit—the state saves resources while the defendant gets off death row.

Gershowitz’s article, therefore, affords a window into the increasing use of predictive analytics in deciding whether to bring or resolve litigation. Sifting through data on all prior capital cases can yield clues as to the likelihood of success or the length of litigation in future capital cases. Not surprisingly, the past can, to some extent, help us predict the future and thereby inform the governor’s commutation decision.

Deployment of predictive analytics is more familiar in the private sector. The life insurance industry historically is predicated on actuarial science, and credit card companies rely on complex data to score riskiness of a loan or to detect fraud. Even sports teams follow a “Moneyball” approach to drafting and acquiring the best talent possible based on prior data.

Gershowitz’s article presages the role that predictive analytics will play in the public sector, saving vast resources and limiting subjectivity in governmental decision-making. Reliance on prior data can help determine when the government should settle torts cases, pay Veterans claims, and subject those receiving disability to review to determine if their disability continues. Predictive analytics may also help the IRS streamline tax auditing and collection. On the other hand, unlike in private law, individuated decision-making may be required by the government either under the Constitution or legislative directives. Moreover, the government’s consideration of historical factors correlated with protected categories such as race may result, on occasion, in discrimination when reliance on the prior data culminates in denial of a benefit or increased punishment. As with any other technological breakthrough, predictive analytics as applied to the public sector brings tremendous promise but concerns as well.


by Valena Beety

This Essay responds to Professor Brandon Garrett’s Constitutional Regulation of Forensic Evidence, and, in particular, his identification of the dire need to change the culture of disclosing forensic evidence. My work on forensics is—similarly to Garrett’s—rooted in both scholarship and litigation of wrongful convictions. From this perspective, I question whether prosecutors fully disclose forensics findings and whether defense attorneys understand these findings and their impact on a client’s case. To clarify forensic findings for the entire courtroom, this Essay suggests increased pre-trial discovery and disclosure of forensic evidence and forensic experts. Forensic analysts largely work in police-governed labs; therefore, this Essay also posits ways to ensure complete Brady compliance as well as obtain accurate and reliable forensic findings. Correctly understanding forensic findings can remedy a lack of transparency surrounding whether results were completely disclosed and whether the results support the testimony of lab analysts. Finally, to assist the court with its gate-keeping role of admitting forensic science disciplines and findings, this Essay recommends that courts appoint independent experts under Federal Rule of Evidence 706.


by Michael R. Doucette

In their article, Two Models of Pre-Plea Discovery in Criminal Cases: An Empirical Comparison, Professors Turner and Redlich ostensibly compare North Carolina’s “open-file” criminal discovery with Virginia’s “closed-file” discovery. Based on their survey results, they conclude that open-file discovery is “a better guarantor of informed decisions and efficient process in criminal cases.” While we appreciate the authors’ justifiable concerns about the relative reliability of criminal convictions between Virginia and North Carolina, we must disagree with their methodology and, as a result, many of their conclusions. Rather than refute line-by-line, I will make a few brief general comments on behalf of Virginia’s prosecutors.


by Jennifer Wriggins

Issues of race and racism in the U.S. torts system continue to deserve much more attention from legal scholarship than they receive, and Keeping Cases from Black Juries is a valuable contribution. Studying racism as it infects the torts system is difficult because explicit de jure exclusions of black jurors are in the past; race is no longer on the surface of tort opinions; and court records do not reveal the race of tort plaintiffs, defendants, or jurors. Yet it is essential to try and understand the workings of race and racism in the torts system. The authors pose a question that is probably impossible to definitively answer but that is very important to explore: where state legislatures and courts continue to retain outmoded tort doctrines like contributory negligence, which tend to limit plaintiffs’ access to juries, is this because state legislatures and judges believe juries with large concentrations of African-Americans and low-income people will unacceptably distribute wealth to plaintiffs? The term “Bronx effect” alludes to this alleged phenomenon. No other article has rigorously tried to link the so-called Bronx effect with the perpetuation of outmoded tort doctrines. The authors use a complex interdisciplinary approach to rank states in terms of the degree to which their tort doctrines deny plaintiffs’ access to juries. Digging deep into factors that might affect a state’s ranking, they then find strong correlations between a state’s law making it difficult for plaintiffs to reach a jury, and a state’s having a large African-American population and/or being part of the South. This and other findings in the article are significant, bringing to light a race- based exclusionary pattern in the legal system. The pattern of keeping cases from black buries also likely leads to undercompensation of African-American plaintiffs, my response explains. The article deserves a place in torts scholarship generally, in critical race scholarship, and in empirical legal scholarship. While it is not surprising that definitive causal conclusions are lacking, implicit bias may shed light on the mechanisms by which these outmoded doctrines endure. The article’s calls for reform are reasonable in light of the evidence of the study and other torts scholarship.