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Articles 1 - 30 of 107
Full-Text Articles in Law
Can You Provide Evidence Of Insufficient Evidence? The Precautionary Principle At The Wto, Elisa Vecchione
Can You Provide Evidence Of Insufficient Evidence? The Precautionary Principle At The Wto, Elisa Vecchione
Elisa Vecchione
This paper aims to demonstrate that the WTO jurisprudence on science-related trade disputes has become entangled with a specific vision of science that has prevented any possible application of the precautionary principle. This situation is due to reasons of both legal procedures specific to the WTO dispute settlement system and the substantive nature of precautionary measures. Indeed, their foundation on “insufficient scientific evidence” dramatically complicates the question of the probative value of science for the purpose of legal adjudication and creates a seemingly contradictory situation, of which the Panel on the EC-Biotech case confirmed to be a victim: that of …
Where Did My Privilege Go? Congress And Its Discretion To Ignore The Attorney-Client Privilege, Don Berthiaume, Jeffrey Ansley
Where Did My Privilege Go? Congress And Its Discretion To Ignore The Attorney-Client Privilege, Don Berthiaume, Jeffrey Ansley
Don R Berthiaume
“The right to counsel is too important to be passed over for prosecutorial convenience or executive branch whimsy. It has been engrained in American jurisprudence since the 18th century when the Bill of Rights was adopted... However, the right to counsel is largely ineffective unless the confidential communications made by a client to his or her lawyer are protected by law.”[1] So said Senator Arlen Specter on February 13, 2009, just seven months before Congress chose to ignore the very privilege he lauded. Why then, if the right to counsel is as important as Senator Specter articulated, does Congress maintain …
Social Media And Legal Ethics, Jonathan I. Ezor
Social Media And Legal Ethics, Jonathan I. Ezor
Jonathan I. Ezor
A presentation on the legal issues arising out of attorney use of social media services, including for electronic discovery
Standing Mute At Arrest As Evidence Of Guilt: The 'Right To Silence' Under Attack, Frank R. Herrmann S.J., Brownlow M. Speer
Standing Mute At Arrest As Evidence Of Guilt: The 'Right To Silence' Under Attack, Frank R. Herrmann S.J., Brownlow M. Speer
Frank R. Herrmann, S.J.
It is commonly understood that an arrested person has a right to remain silent and that the government may not use his or her silence to prove guilt at trial. Three Circuit Courts of Appeal, however, reject this understanding. They allow the prosecution to use an arrested person's pre-Miranda silence as direct evidence of guilt. This article argues that those Circuits are wrong. The article, first, demonstrates the historical antiquity of the Common Law principle that a detained person has the right to stand mute. Though the right was limited by statutory incursion and in tension, at times, with the …
Finding Evidence On Facebook, Jeffrey Bellin
Civil Practice And Procedure, John R. Walk, Andrew P. Sherrod
Civil Practice And Procedure, John R. Walk, Andrew P. Sherrod
University of Richmond Law Review
This article surveys recent significant developments in Virginia civil practice and procedure. Specifically, the article discusses opinions of the Supreme Court of Virginia from June 2010through June 2011 addressing civil procedure topics; significant amendments to the Rules of the Supreme Court of Virginia concerning procedural issues during the same period; and legislation enacted by the Virginia General Assembly during its 2011 session that relates to civil practice.
A Pleading Problem: Seventh Circuit Decision In Swanson V. Citibank Illustrates The Unstable State Of Federal Pleading Standards In The Post-Iqbal Era, Trisha Chokshi
Northern Illinois University Law Review
Historically, courts have been a place where individuals could obtain justice and relief for their grievances. Ordinary people have used courts to desegregate schools, protect the environment, punish corporate misconduct, and preserve fundamental liberties. Citizen access to federal courts, however, has become much more difficult in recent years in the wake of two Supreme Court decisions: Bell Atlantic Corp. v. Twombly in 2001 and Ashcroft v. Iqbal in 2009, which raised the pleading standard a plaintiff must satisfy before her case can go to court. In civil litigation, a pleading serves as an individual’s key to the courthouse door. The …
Accounting For Federalism In State Courts - Exclusion Of Evidence Obtained Lawfully By Federal Agents, Robert M. Bloom, Hillary J. Massey
Accounting For Federalism In State Courts - Exclusion Of Evidence Obtained Lawfully By Federal Agents, Robert M. Bloom, Hillary J. Massey
Robert M. Bloom
After the terrorist attacks on September 11th, Congress greatly enhanced federal law enforcement powers through enactment of the U.S.A. Patriot Act. The Supreme Court also has provided more leeway to federal officers in the past few decades, for example by limiting the scope of the exclusionary rule. At the same time, many states have interpreted their constitutions to provide greater individual protections to their citizens than provided by the federal constitution. This phenomenon has sometimes created a wide disparity between the investigatory techniques available to federal versus state law enforcement officers. As a result, state courts sometimes must decide whether …
Weaving Functional Brain Imaging Into The Tapestry Of Evidence: A Case For Functional Neuroimaging In Federal Criminal Courts, Adam Teitcher
Weaving Functional Brain Imaging Into The Tapestry Of Evidence: A Case For Functional Neuroimaging In Federal Criminal Courts, Adam Teitcher
Fordham Law Review
Recent advances in brain imaging technologies allow researchers to "peer inside" a defendant's brain. Although functional neuroimaging evidence is frequently used in civil litigation, federal courts have been hesitant to admit it into evidence in criminal trials. Scholars and commentators alike continue to debate the merits, detriments, and general admissibility of functional neuroimaging evidence in the criminal context. Meanwhile, federal judges repeatedly admit various forms of forensic science into evidence without evaluating them under the appropriate admissibility standards. This Note argues that this has created a double standard for evidence admissibility. Functional neuroimaging evidence may, in fact, be more scientifically …
Appellate Division, Second Department: People V. Rodriguez, Michael J. Puma
Appellate Division, Second Department: People V. Rodriguez, Michael J. Puma
Touro Law Review
No abstract provided.
Judging Genes: Implications Of The Second Generation Of Genetic Tests In The Courtroom, Diane E. Hoffmann, Karen H. Rothenberg
Judging Genes: Implications Of The Second Generation Of Genetic Tests In The Courtroom, Diane E. Hoffmann, Karen H. Rothenberg
Diane Hoffmann
The use of DNA tests for identification has revolutionized court proceedings in criminal and paternity cases. Now, requests by litigants to admit or compel a second generation of genetic tests – tests to confirm or predict genetic diseases and conditions – threaten to affect judicial decision-making in many more contexts. Unlike DNA tests for identification, these second generation tests may provide highly personal health and behavioral information about individuals and their relatives and will pose new challenges for trial court judges. This article reports on an original empirical study of how judges analyze these requests and uses the study results …
More On The Impeachment Of Criminal Defendants, Jeffrey Bellin
More On The Impeachment Of Criminal Defendants, Jeffrey Bellin
Popular Media
No abstract provided.
More On The Future Of Present Sense Impressions, Jeffrey Bellin
More On The Future Of Present Sense Impressions, Jeffrey Bellin
Popular Media
No abstract provided.
Diagnosing Liability : The Legal History Of Posttraumatic Stress Disorder, Deirdre M. Smith
Diagnosing Liability : The Legal History Of Posttraumatic Stress Disorder, Deirdre M. Smith
Faculty Publications
This Article examines the origins of the unique relationship between the psychiatric diagnosis Posttraumatic Stress Disorder (PTSD) and the law and considers the implications of that relationship for contemporary uses of the diagnosis in legal settings. PTSD stands apart from all other diagnoses in psychiatry 's standard classification system, the Diagnostic and Statistical Manual of Mental Disorders (DSM} , and is the focus of significant controversy within psychiatry, because its diagnostic criteria require a determination of causation. By diagnosing a person with PTSD, a clinician necessarily assigns responsibility to a specific event or agent for causing the person 's symptoms, …
Plea Bargaining, Discovery, And The Intractable Problem Of Impeachment Disclosures, R. Michael Cassidy
Plea Bargaining, Discovery, And The Intractable Problem Of Impeachment Disclosures, R. Michael Cassidy
Vanderbilt Law Review
Several recent high-profile cases have illustrated flaws with the government's discovery practices in criminal cases and have put prosecutors across the country on the defensive about their compliance with disclosure obligations. The conviction of former Alaska Senator Ted Stevens on ethics charges was set aside after it was revealed that federal prosecutors withheld notes of an interview with a key government witness; one member of the Stevens prosecution team who was under investigation for contempt subsequently committed suicide. The Supreme Court remanded a double murder case from Tennessee for potential resentencing after it was revealed that state prosecutors had withheld …
Electronic Discovery: A Survey Of E-Discovery, Its Effect On Corporate Constitutional Rights And Why Corporations May Receive The Fifth Amendment Privilege Against Self-Incrimination During Parallel Civil And Criminal Litigation, Percy Arnell King
Percy Arnell King Esq.
Advancing technology has created more places to seek out relevant information than ever before which, has created a burden for corporations tasked with retaining this information to comply with applicable laws and the prospect of civil or criminal litigation. This article explores how the modern trend of storing information electronically and subsequent electronic discovery allowed in parallel civil and criminal trials is inherently unfair to corporations. Furthermore, corporations have been granted several rights derived from the Bill of Rights, and should also receive the Fifth Amendment privilege against self-incrimination.
The Usefulness Of . . . Evidence, Jeffrey Bellin
The Evidentiary Significance Of “Tweets,” Texts And Status Updates (Starring Justin Bieber), Jeffrey Bellin
The Evidentiary Significance Of “Tweets,” Texts And Status Updates (Starring Justin Bieber), Jeffrey Bellin
Popular Media
No abstract provided.
Gone But Not Forgotten: When Privacy, Policy And Privilege Collide, Louise L. Hill
Gone But Not Forgotten: When Privacy, Policy And Privilege Collide, Louise L. Hill
Louise L Hill
No abstract provided.
Silence Speaks Volumes: How The Absence Of Testimonial Compulsion Prior To Arrest Makes A Defendant’S Pre-Arrest Pre-Miranda Silence Admissible As Substantive Evidence, Jason E. Niehaus
Jason E Niehaus
The scope of this article addresses whether using a Defendant's pre-arrest, pre-Miranda silence as substantive evidence of guilt violates the Texas Constitution. Federal cases are addressed to illustrate the different approaches used to analyzing the constitutional questions raised by using the Defendant's silence as evidence. The analysis employed by Texas courts in ruling on the issue are then compared to the federal cases. After reviewing the federal and state cases on point, the conclusion is reached that the trend in Texas towards allowing the use of a Defendant's pre-arrest, pre-Miranda silence as substantive evidence of guilt does not offend the …
Keep Your Friends Close But Your Auditors Closer: Corporations Risk Waiver When Independent Auditors Request Work Product, Daniel Reach
Keep Your Friends Close But Your Auditors Closer: Corporations Risk Waiver When Independent Auditors Request Work Product, Daniel Reach
Daniel Reach
In the current transparency-driven regulatory environment, corporations’ efforts at compliance are rife with uncertainty. The work product doctrine is a core safeguard of a lawyer’s work, which may contain sensitive information that corporations would not want disclosed to opposing parties. Meanwhile, independent auditors serve in a perilous capacity as they provide necessary services to their corporate clients while risking potentially adverse exposure of the information these clients and their counsel disclose to them. The work product doctrine is a time-honored and rule-driven protection that guards the mental impressions and work efforts of lawyers from discovery by opposing parties. Public accounting …
High Expectations And Some Wounded Hopes: The Policy And Politics Of A Uniform Statute On Videotaping Custodial Interrogations, Andrew Taslitz
High Expectations And Some Wounded Hopes: The Policy And Politics Of A Uniform Statute On Videotaping Custodial Interrogations, Andrew Taslitz
Andrew E. Taslitz
Much has been written about the need to videotape the entire process of police interrogating suspects. Videotaping discourages abusive interrogation techniques, improves police training in proper techniques, reduces frivolous suppression motions because facts are no longer in dispute, and improves jury decision making about the voluntariness and accuracy of a confession. Despite these benefits, only a small, albeit growing, number of states have adopted legislation mandating electronic recording of the entire interrogation process. In the hope of accelerating legislative adoption of this procedure and of improving the quality of such legislation, the Uniform Law Commission (ULC), formerly the National Conference …
On Shaky Ground: The Need For The Reexamination Of The Admissibility Of Field Sobriety Testing, Patrick A. Corbus
On Shaky Ground: The Need For The Reexamination Of The Admissibility Of Field Sobriety Testing, Patrick A. Corbus
Patrick A Corbus
Federal and state rules of evidence permit judges to take judicial notice of specific categories of facts, which allows these facts into evidence if the truth of these facts is so notorious or well known that they cannot be refuted. Frequently, judicial notice is used for the most basic, or common sense, facts without being formally introduced by a witness or other rule of evidence. At times, however, a request is made for a court to judicially notice something more complex than which day of the week corresponds to a particular calendar date. While judicial notice can contribute to a …
Does 'Sorry' Incriminate? Evidence, Harm And The Meaning Of Apologies, Jeffrey S. Helmreich
Does 'Sorry' Incriminate? Evidence, Harm And The Meaning Of Apologies, Jeffrey S. Helmreich
Jeffrey S. Helmreich
Apology has proven a dramatically effective means of resolving conflict and preventing litigation. Still, many injurers, particularly physicians, withhold apologies because they have long been used as evidence of liability. Recently, a majority of states in the U.S. have passed “Apology Laws” designed to lift this disincentive, by shielding apologies from evidentiary use. However, most of the new laws protect only expressions of benevolence and sympathy (such as “I feel bad about what happened to you”). They exclude full apologies, which express regret, remorse or self-criticism (“I should have prevented it,” for example). The state measures thereby reinforce a prevailing …
Rule 609 And The Frustratingly Unkillable Five-Factor Mahone Framework, Jeffrey Bellin
Rule 609 And The Frustratingly Unkillable Five-Factor Mahone Framework, Jeffrey Bellin
Popular Media
No abstract provided.
Unpredictable And Inconsistent: Nevada's Expert Witness Standard After Higgs V. State, Ryan A. Henry
Unpredictable And Inconsistent: Nevada's Expert Witness Standard After Higgs V. State, Ryan A. Henry
Nevada Law Journal
No abstract provided.
On Shaky Ground: The Need For The Reexamination Of The Admissibility Of Field Sobriety Testing, Patrick A. Corbus
On Shaky Ground: The Need For The Reexamination Of The Admissibility Of Field Sobriety Testing, Patrick A. Corbus
Patrick A Corbus
Federal and state rules of evidence permit judges to take judicial notice of specific categories of facts, which allows these facts into evidence if the truth of these facts is so notorious or well known that they cannot be refuted. Frequently, judicial notice is used for the most basic, or common sense, facts without being formally introduced by a witness or other rule of evidence. At times, however, a request is made for a court to judicially notice something more complex than which day of the week corresponds to a particular calendar date. While judicial notice can contribute to a …
On Shaky Ground: The Need For The Reexamination Of The Admissibility Of Field Sobriety Testing, Patrick A. Corbus
On Shaky Ground: The Need For The Reexamination Of The Admissibility Of Field Sobriety Testing, Patrick A. Corbus
Patrick A Corbus
Federal and state rules of evidence permit judges to take judicial notice of specific categories of facts, which allows these facts into evidence if the truth of these facts is so notorious or well known that they cannot be refuted. Frequently, judicial notice is used for the most basic, or common sense, facts without being formally introduced by a witness or other rule of evidence. At times, however, a request is made for a court to judicially notice something more complex than which day of the week corresponds to a particular calendar date. While judicial notice can contribute to a …
The Execution Of Cameron Todd Willingham: Junk Science, An Innocent Man, And The Politics Of Death, Paul C. Giannelli
The Execution Of Cameron Todd Willingham: Junk Science, An Innocent Man, And The Politics Of Death, Paul C. Giannelli
Paul C. Giannelli
Cameron Todd Willingham was tried and executed for the arson deaths of his three little girls. The expert testimony offered against him to establish arson was junk science. The case has since become infamous, the subject of an award-winning New Yorker article, numerous newspaper accounts, and several television shows. It also became enmeshed in the death penalty debate and the reelection of Texas Governor Rick Perry, who refused to grant a stay of execution after a noted arson expert submitted a report debunking the “science” offered at Willingham’s trial. The governor has since attempted to derail an investigation by the …
A Safety Doctrine To The Criminal Justice System, Boaz Sangero, Mordechai Halpert
A Safety Doctrine To The Criminal Justice System, Boaz Sangero, Mordechai Halpert
Prof. Boaz Sangero
Criminal law, unlike other risk-creating fields, currently lacks any modern safety doctrine. In light of the proven phenomenon of wrongful convictions and the severe harm it causes to both those wrongly convicted and society, this Essay focuses on the necessary preliminary stages in developing a safety doctrine for the criminal justice system. Under our conception, criminal law is a "safety-critical system": it deals with matters of life and death. We view false conviction to be a type of accident, similarly to a crash of a fighter airplane. This comparison is not only metaphorical, but quite literal when the damage is …