For the future, as FantasySCOTUS develops, this information market can prove to be quite valuable beyond the halls of academia. As Miriam Cherry and Robert Rogers point out in their 2006 article, the value of a Supreme Court prediction market “lies in litigation, particularly settlement negotiations and decisions. In any given year, probably hundreds, if not thousands, of civil disputes and criminal prosecutions are settled that contain issues the Supreme Court may resolve that Term . . . When one considers that the Court may hear approximately one hundred cases a term, many with monetary ramifications, the financial value of” FantasySCOTUS could be considerable.

To use an example from this term, consider AT&T v. Concepion, in which the Supreme Court found that California courts must enforce agreements that prevent class-action arbitration. The case was argued on 11/9/10 and decided on 4/27/11. Assume that in those intervening 6 months, a company in California was faced with a decision: risk a California court ordering class-action arbitration, notwithstanding the text of the contract, or settle the matter and avoid costly arbitration.

If FantasySCOTUS could predict with a degree of certainty that the Court will reverse the California court, the company may be hesitant to engage in a settlement, as they will triumph in court. On the other hand, if FantasySCOTUS predicts the Supreme Court will agree with the California courts, they may wish to settle the case, to avoid a risky and expensive class-action arbitration order. These are practical and tactical litigation decisions attorneys must make. Now, they can make this decision informed by data, whereas in the past such decisions were made perhaps based on “gut” instinct.

Or, imagine a criminal case where your client was read his Miranda rights, did not affirmatively invoke his right to remain silent, and subsequently made an incriminating confession. Assume the case of Berghuis v. Thompkins, which presents just this issue, has been argued before before the Court. The prosecutor offers your client a favorable plea bargain that is only on the table for a limited duration; if not accepted, the prosecutor will take the case to trial. If the defendant signs the plea agreement, he waives all appeal rights.

The defense attorney is faced with a choice. If his client accepts the plea bargain,and the Supreme Court subsequently finds that this interrogation did not result in a violation of Miranda, his client will have secured a short sentence, less than what he likely would have received at trial. Alternatively, if his client accepts the plea bargain, and the Supreme Court finds this interrogation did result in a violation of Miranda, his client cannot challenge the confession, and he is stuck in jail; had he gone to trial, the court would have suppressed the evidence, and he would have been acquitted without the confession.

FantasySCOTUS can be a game changer in such a situation. If FantasySCOTUS shows that the Court will find a violation of Miranda in Berghuis v. Thompkins, perhaps the attorney should roll the dice, and go to trial, hoping the judge will ultimately suppress the evidence. If FantasySCOTUS shows that the Court will not find a violation of Miranda (the actual outcome of this 5-4 case), perhaps the attorney should accept the favorable plea bargain, and not risk it. These are real decisions defense attorneys have to make. Now, with FantasySCOTUS, this decision can be made with information.