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Full-Text Articles in Law
Bending The Rules Of Evidence, Edward K. Cheng, G. Alexander Nunn, Julia Simon-Kerr
Bending The Rules Of Evidence, Edward K. Cheng, G. Alexander Nunn, Julia Simon-Kerr
Faculty Scholarship
The evidence rules have well-established, standard textual meanings—meanings that evidence professors teach their law students every year. Yet, despite the rules’ clarity, courts misapply them across a wide array of cases: Judges allow past acts to bypass the propensity prohibition, squeeze hearsay into facially inapplicable exceptions, and poke holes in supposedly ironclad privileges. And that’s just the beginning.
The evidence literature sees these misapplications as mistakes by inept trial judges. This Article takes a very different view. These “mistakes” are often not mistakes at all, but rather instances in which courts are intentionally bending the rules of evidence. Codified evidentiary …
Forum Fights And Fundamental Rights: Amenability’S Distorted Frame, James P. George
Forum Fights And Fundamental Rights: Amenability’S Distorted Frame, James P. George
Faculty Scholarship
Framing—the subtle use of context to suggest a conclusion—is a dubious alternative to direct argumentation. Both the brilliance and the bane of marketing, framing also creeps into supposedly objective analysis. Law offers several examples, but a lesser known one is International Shoe’s two-part jurisdictional test. The framing occurs in the underscoring of defendant’s due process rights contrasted with plaintiff’s “interests” which are often dependent on governmental interests. This equation ignores, both rhetorically and analytically, the injured party’s centuries-old rights to—not interests in—a remedy in an open and adequate forum.
Even within the biased frame, the test generally works, if not …