Open Access. Powered by Scholars. Published by Universities.®
- Keyword
-
- Cleveland v. Cleveland Electric Illuminating Company (CEI) (82)
- Litigation (66)
- Evidence (60)
- Cleveland v. Cleveland Electric Illuminating Company (21)
- Scientific (7)
-
- Hearsay (5)
- Ohio (5)
- Polygraph (5)
- Character (4)
- Depositions (4)
- Etc.) (4)
- Forensic Science (4)
- Litigation (Trial practice (4)
- Science (4)
- Testimony (4)
- Criminal Law (3)
- Due process (3)
- Expert (3)
- Scientific Evidence (3)
- Appellate procedure (2)
- DNA (2)
- Discovery (2)
- Ethics (2)
- Expert Testimony (2)
- Federal Rules of Civil Procedure (2)
- Forum non conveniens (2)
- Forum selection (2)
- Joinder and Severance (2)
- National Academy of Sciences (2)
- Other Acts (2)
- Publication Year
- Publication
- Publication Type
Articles 1 - 30 of 191
Full-Text Articles in Law
Volume 09 (Part 1), District Court Of The United States For The Northern District Of Ohio, Eastern Division
Volume 09 (Part 1), District Court Of The United States For The Northern District Of Ohio, Eastern Division
City of Cleveland v. The Cleveland Illuminating Company, 1980
City of Cleveland, plaintiff vs. The Cleveland Electric Illuminating Company, defendant : civil action no. C75-560; proceedings had before the Honorable Robert B. Krupansky of said court, commencing on Tuesday, September 2, 1980 in the District Court of the United States for the Northern District of Ohio, Eastern Division
10/14/80-10/16/80
Busting Up The Pretrial Industry, Andrew S. Pollis
Busting Up The Pretrial Industry, Andrew S. Pollis
Faculty Publications
It is by now axiomatic that the objective of the civil lawsuit has evolved. Litigants no longer routinely resolve their disputes through trial but instead engage in pretrial battles designed to extract favorable settlements. Modern litigation revolves around protracted discovery and dispositive motions, driven by two primary dynamics: (1) the maximization of fees for lawyers who charge their clients by the hour; and (2) the desire to make litigation as painful as possible for an adversary so that settlement becomes the adversary’s better option. We have, in short, fostered a pretrial industry that can relegate the merits of a dispute …
Invisible Error, Cassandra Burke Robertson
Invisible Error, Cassandra Burke Robertson
Faculty Publications
When trial becomes a luxury, retrial can start to look downright decadent. Scholars have documented the “vanishing trial” in recent decades, exploring the various causes and effects of declining trial rates. Retrial, if mentioned at all, is portrayed as a relatively inefficient vehicle for error correction at best. At worst, it is seen as a threat to the sanctity of the ever-rarer jury verdict.
But the jury trial is only endangered, not yet extinct. And continuing to protect the constitutional right to a jury requires appreciating the role of retrial within the due-process framework. When the jury’s verdict contradicts the …
The Death Of Inference, Andrew S. Pollis
The Death Of Inference, Andrew S. Pollis
Faculty Publications
This Article examines a disturbing trend in civil litigation: the demise of the jury’s historic prerogative to draw inferences from circumstantial evidence. Judges have arrogated to themselves the power to dismiss cases if they find the proffered inferenc
Pleading Patterns And The Role Of Litigation As A Driver Of Federal Climate Change Legislation, Juscelino F. Colares, Kosta Ristovski
Pleading Patterns And The Role Of Litigation As A Driver Of Federal Climate Change Legislation, Juscelino F. Colares, Kosta Ristovski
Faculty Publications
Based on a variant of the Elliott-Ackerman-Millian theory that variable, potentially inconsistent and costly litigation outcomes induce industry to seek federal preemptive legislation to reign in such costs, we collect data on climate change-related litigation to determine whether litigation might motivate major greenhouse gas emitters to accept a preemptive, though possibly carbon-restricting, legislative compromise. We conduct a spectral cluster analysis on 178 initial federal and state judicial filings to reveal the most relevant groupings among climate change-related suits and their underlying pleading patterns. Besides exposing the general content and structure of climate change-related filings, this study identifies major specific pleading …
The Right To Appeal, Cassandra Burke Robertson
The Right To Appeal, Cassandra Burke Robertson
Faculty Publications
It is time for the Supreme Court to explicitly recognize a constitutional right to appeal. Over the last century, both the federal and state judicial systems have increasingly relied on appellate remedies to protect essential rights. In spite of the modern importance of such remedies, however, the Supreme Court has repeatedly declined to recognize a due-process right to appeal in either civil or criminal cases. Instead, it has repeated nineteenth-century dicta denying the right of appeal, and it has declined petitions for certiorari in both civil and criminal cases seeking to persuade the Court to reconsider that position.
In this …
Civil Rule 54(B): Seventy-Five And Ready For Retirement, Andrew S. Pollis
Civil Rule 54(B): Seventy-Five And Ready For Retirement, Andrew S. Pollis
Faculty Publications
As we commemorate the diamond anniversary of the Federal Rules of Civil Procedure, this Article takes a critical look at one of the failed Rules: Rule 54(b). Although many commentators have noted difficulties with Rule 54(b), this is the first effort to describe those difficulties comprehensively, analyze their root causes, and offer a workable alternative.
When an order resolves a discrete claim in a multi-claim action, Rule 54(b) permits a district court to sever the order for immediate appeal by “expressly determine[in] that there is no just reason for delay.” The rule was designed to ease the hardship on litigants …
Does The Lawyer Make A Difference? Public Defender V. Appointed Counsel, Peter A. Joy, Kevin C. Mcmunigal
Does The Lawyer Make A Difference? Public Defender V. Appointed Counsel, Peter A. Joy, Kevin C. Mcmunigal
Faculty Publications
A recent study found that poor criminal defendants in Philadelphia who were represented by court-appointed private lawyers were more often found guilty and sentenced to more time in prison than similarly situated defendants represented by public defenders. In this column, we review the details of the study, its findings, and its ethical and constitutional implications.
Forum Non Conveniens On Appeal: The Case For Interlocutory Review, Cassandra Burke Robertson
Forum Non Conveniens On Appeal: The Case For Interlocutory Review, Cassandra Burke Robertson
Faculty Publications
Court-access doctrine in transnational litigation is plagued by uncertainty. Without a national court-access policy, federal courts often reach inconsistent forum non conveniens decisions even on very similar facts. This inconsistency is compounded by the district court’s largely unreviewable discretion in making those forum-access decisions, which precludes effective resolution of these conflicts through the appellate process. As a result, the law underlying the forum non conveniens doctrine remains unsettled, creating systemic inefficiency both in litigation procedure and in regulatory policy.
This article, prepared for the symposium “Our Courts and the World: Transnational Litigation and Civil Procedure,” argues that expanding appellate review …
The Inextricable Merits Problem In Personal Jurisdiction, Cassandra Burke Robertson
The Inextricable Merits Problem In Personal Jurisdiction, Cassandra Burke Robertson
Faculty Publications
In 1984, Hollywood star Shirley Jones convinced the Supreme Court to adopt an effects-based test for personal jurisdiction when she brought suit in California against a Florida defendant for defaming her reputation. After adopting the test in Calder v. Jones, the Court never returned to the issue, and in fact avoided personal jurisdiction questions entirely for more than two decades. This past spring, however, the Supreme Court not only revisited the personal jurisdiction doctrine but also signaled an intention to return to personal jurisdiction issues in the near future, with two justices calling specifically for development of the doctrine in …
The 2009 Nas Forensic Science Report: A Literature Review, Paul C. Giannelli
The 2009 Nas Forensic Science Report: A Literature Review, Paul C. Giannelli
Faculty Publications
In February 29, the National Academy of Sciences (NAS) released its report on forensic science: Strengthening Forensic Science in the United States: A Path Forward (29). The popular press immediately trumpeted the report’s release, with headlines such as (1) “Report Urges Overhaul of Crime Lab System,” (2) “Real-life Police Forensics Don’t Resemble ‘CSI’: Reliability is ‘Low or Non-existent,’ Report Finds” and (3) “Science Found Wanting in Nation’s Crime Labs.”
Within three months of its publication, Justice Scalia cited the report in a Supreme Court decision, writing: “Forensic evidence is not uniquely immune from the risk of manipulation. . . Serious …
Confrontation, Experts, And Rule 703, Paul C. Giannelli
Confrontation, Experts, And Rule 703, Paul C. Giannelli
Faculty Publications
The United States Supreme Court has decided several cases concerning expert testimony and the Confrontation Clause. This essay argues that confrontation issues are complicated by Federal Evidence Rules 73 and 75, which changed the common law rules. Altering the common law made sense in civil cases because civil rules of procedure provide extensive discovery, which ensures basic fairness. In contrast, discovery in criminal cases is quite limited, which undercuts an accused’s ability to meaningfully confront prosecution experts at trial.
Forum Non Conveniens And Enforcement Of Foreign Judgments, Christopher A. Whytock, Cassandra Burke Robertson
Forum Non Conveniens And Enforcement Of Foreign Judgments, Christopher A. Whytock, Cassandra Burke Robertson
Faculty Publications
When citizens of Ecuador sued Texaco, Inc. in a U.S. court seeking damages for oil contamination in the Amazon, Texaco successfully moved to dismiss the suit in favor of Ecuador based on the forum non conveniens doctrine, arguing – as that doctrine requires – that Ecuador was an adequate alternative forum and more appropriate than the United States for hearing the suit. The plaintiffs then refiled the suit in Ecuador, and a court there entered a multi-billion dollar judgment against Chevron Corporation, which had merged with Texaco. Chevron now argues that the Ecuadorian legal system suffers from deficiencies that should …
The Need For Non-Discretionary Interlocutory Appellate Review In Multidistrict Litigation, Andrew S. Pollis
The Need For Non-Discretionary Interlocutory Appellate Review In Multidistrict Litigation, Andrew S. Pollis
Faculty Publications
Multidistrict Litigation (MDL) is a tool for managing complex litigation by transferring cases with common questions of fact to a single judge for coordinated pretrial proceedings. The subject matter of the cases can run the gamut from airplane crashes to securities fraud to environmental disasters, such as the recent BP oil spill in the Gulf of Mexico. Today, about a third of all pending civil cases in federal court are part of the MDL system. A single judge renders all the important legal decisions in each MDL, exerting outsized impact on the parties and on the evolution of the law …
Mismatch: The Misuse Of Market Efficiency In Market Manipulation Class Actions, Charles R. Korsmo
Mismatch: The Misuse Of Market Efficiency In Market Manipulation Class Actions, Charles R. Korsmo
Faculty Publications
Plaintiffs commonly bring two distinct types of claims under Section 1(b) of the Securities Exchange Act of 1934: 1) claims of material misrepresentations or omissions; and 2) claims of trade-based market manipulation. Despite the distinctive features of the two types of claims, courts have tended to treat them identically when applying the “fraud on the market” doctrine. In particular, courts have required both types of plaintiffs to make identical showings that the relevant security traded in an “efficient market” in order to gain a presumption of reliance. The reasons for requiring such a showing by plaintiffs in a misrepresentation case …
The Impact Of Third-Party Financing On Transnational Litigation, Cassandra Burke Robertson
The Impact Of Third-Party Financing On Transnational Litigation, Cassandra Burke Robertson
Faculty Publications
Third-party litigation finance is a growing industry. The practice, also termed “litigation lending,” allows funders with no other connection to the lawsuit to invest in a plaintiff’s claim in exchange for a share of the ultimate recovery. Most funding agreements have focused on domestic litigation in Australia, the United Kingdom, and the United States. However, the industry is poised for growth worldwide, and the recent environmental lawsuit brought by Ecuadorian plaintiffs against Chevron demonstrates that litigation funding is also beginning to play a role in transnational litigation.
This article, prepared for a symposium on “International Law in Crisis,” speculates about …
Forensic Science: Why No Research?, Paul C. Giannelli
Forensic Science: Why No Research?, Paul C. Giannelli
Faculty Publications
The National Academy of Sciences ground-breaking report on forensic science – Strengthening Forensic Science in the United States: A Path Forward – raised numerous issues. One dominant theme that runs throughout the Report is the failure of some forensic science disciplines to comport with fundamental scientific principles – in particular, to support claims with empirical research. The Report observed that “some forensic science disciplines are supported by little rigorous systematic research to validate the discipline’s basic premises and techniques. There is no evident reason why such research cannot be conducted.”
The Report went on to identify fingerprint examinations, firearms (ballistics) …
Adverse Inference About Adverse Inferences: Restructuring Juridical Roles For Responding To Evidence Tampering By Parties To Litigation, Dale A. Nance
Adverse Inference About Adverse Inferences: Restructuring Juridical Roles For Responding To Evidence Tampering By Parties To Litigation, Dale A. Nance
Faculty Publications
For at least two centuries, Anglo-American courts have responded to a party's evidence tampering by allowing the opponent to argue to jurors that they should draw an adverse inference against the offending party in deciding the merits of the case. This Article argues that the use of such inferences, and invitations to draw them, should be radically curtailed, not only because of the ambiguities and risks of prejudice that such inferences entail, but more importantly because they reflect and contribute to a confusion of roles in which the jury is enlisted to participate in the management of the pre-trial conduct …
Comparative Bullet Lead Analysis: A Retrospective, Paul C. Giannelli
Comparative Bullet Lead Analysis: A Retrospective, Paul C. Giannelli
Faculty Publications
For over thirty years, FBI experts testified about comparative bullet lead analysis (CBLA), a technique that was first used in the investigation into President Kennedy’s assassination. CBLA compares trace chemicals found in bullets at crime scenes with ammunition found in the possession of a suspect. This technique was used by the FBI when firearms (“ballistics”) identification could not be employed – for example, if the weapon was not recovered or the bullet was too mutilated to compare striations. Although the FBI eventually ceased using CBLA, the Bureau’s conduct in first employing the technique and then defending it after it was …
Scientific Fraud, Paul C. Giannelli
Scientific Fraud, Paul C. Giannelli
Faculty Publications
Although scientific fraud is rare, when it occurs, it needs to be identified and documented. This article discusses two of the most notorious cases in forensic science. Part I focuses on the misconduct of Fred Zain, a serologist with the West Virginia State Police crime laboratory and later with the County Medical Examiner’s laboratory in San Antonio, Texas. Part II examines the misconduct of Joyce Gilchrist, a forensic examiner with the Oklahoma City Police Department.
Scientific Evidence In Criminal Prosecutions - A Retrospective, Paul C. Giannelli
Scientific Evidence In Criminal Prosecutions - A Retrospective, Paul C. Giannelli
Faculty Publications
No abstract provided.
Independent Crime Laboratories: The Problem Of Motivational And Cognitive Bias, Paul C. Giannelli
Independent Crime Laboratories: The Problem Of Motivational And Cognitive Bias, Paul C. Giannelli
Faculty Publications
One of the most controversial recommendations in the National Academy of Sciences report on forensic science — Strengthening Forensic Science in the United States: The Path Forward — concerns the removal of crime laboratories from the administrative control of law enforcement agencies. For decades scholars have commented on the “inbred bias of crime laboratories affiliated with law enforcement agencies.” Some commentators have proposed independent laboratories as the remedy for this problem, and in 22, the Illinois Governor’s Commission on Capital Punishment proposed the establishment of an independent state crime laboratory. This essay documents the problems that triggered the NAS Report’s …
The Nrc Report And Its Implications For Criminal Litigation, Paul C. Giannelli
The Nrc Report And Its Implications For Criminal Litigation, Paul C. Giannelli
Faculty Publications
The National Research Council, an arm of the National Academy of Sciences, issued a landmark report on forensic science in February 2009. In the long run, the report’s recommendations, if adopted, would benefit law enforcement and prosecutors. The recommendations would allow forensic science to develop a strong scientific basis and limit evidentiary challenges regarding the reliability of forensic evidence. In keeping with its congressional charge, however, the NRC Committee did not directly address admissibility issues. Nevertheless, given its content, the report will inevitably be cited in criminal cases. Indeed, within months, the United States Supreme Court cited the report, noting …
Scientific Evidence And Prosecutorial Misconduct In The Duke Lacrosse Rape Case, Paul C. Giannelli
Scientific Evidence And Prosecutorial Misconduct In The Duke Lacrosse Rape Case, Paul C. Giannelli
Faculty Publications
The need for pretrial discovery in criminal cases is critical. A defendant's right to confrontation, effective assistance of counsel, and due process often turns on pretrial disclosure. This essay discusses a case that demonstrates this point.
Pretrial Discovery Of Expert Testimony, Paul C. Giannelli
Pretrial Discovery Of Expert Testimony, Paul C. Giannelli
Faculty Publications
No abstract provided.
Nontestimonial Identification Orders For Dna Testing, Paul C. Giannelli
Nontestimonial Identification Orders For Dna Testing, Paul C. Giannelli
Faculty Publications
No abstract provided.
Prosecutors, Ethics, And Expert Witnesses, Paul C. Giannelli, Kevin C. Mcmunigal
Prosecutors, Ethics, And Expert Witnesses, Paul C. Giannelli, Kevin C. Mcmunigal
Faculty Publications
Commentators who have examined the DNA exonerations have noted the disturbing role that prosecutors have played in these wrongful convictions. Another significant contributor to these miscarriages of justice is the misuse of expert testimony, a third of the cases according to some sources. This Article examines the intersection of these two factors - the prosecutor's role in using and presenting expert testimony.
Prosecutorial misconduct may occur during most stages of a trial, beginning with the selection of witnesses, including the improper "shopping" for experts. Additional abuses occur when prosecutors fail to abide by rules governing the pretrial disclosure of scientific …
Daubert Challenges To Firearms (“Ballistics”) Identifications, Paul C. Giannelli
Daubert Challenges To Firearms (“Ballistics”) Identifications, Paul C. Giannelli
Faculty Publications
No abstract provided.
Bite Mark Analysis, Paul C. Giannelli
Bite Mark Analysis, Paul C. Giannelli
Faculty Publications
Courts have admitted bite mark comparison evidence in homicide, rape, and child abuse cases. By the 1980s, the technique had gained widespread judicial acceptance. Hundreds of cases have admitted this type of evidence, and no reported case has rejected it. Moreover, some courts speak of bite mark comparison as a "science." Indeed, its acceptance is so well-established that several courts have taken judicial notice of its reliability, implying that the validity of the technique is not subject to reasonable dispute.
Yet, the scientific foundations for bite mark comparisons has never been demonstrated. Such basic issues as the uniqueness of the …
Joinder & Severance Of Offenses, Paul C. Giannelli
Joinder & Severance Of Offenses, Paul C. Giannelli
Faculty Publications
No abstract provided.