Most people– including U.S. government officials – are bad at making accurate predictions about what will happen in the future. Just think of Secretary of Defense Robert McNamara’s predictions in the 1960s that a U.S. loss in Vietnam would lead to Communism in all of South Asia, the failure to predict the Iranian revolution in 1979, and the failed judgments in the 1990s and early 2000s about whether Iraq had weapons of mass destruction. Yet courts accord extensive deference to executive predictions in the foreign policy and national security settings, based in part on what the courts view as the Executive’s superior capacity to predict future harms and risks. Recent literature about forecasting provides important insights about how people can make better predictions. This essay draws on that literature to argue that courts should generally be more skeptical of executive branch predictions than they currently are and should, in determining how heavily to defer to those predictions, weigh how closely the Executive has followed best predictive practices.

Citation
Ashley S. Deeks, The Prediction Problem, 29 Green Bag 2d 97 (2026).