Law Commons^™

Can We Calculate Fairness And Reasonableness? Determining What Satisfies The Fair Cross-Section Requirement Of The Sixth Amendment, Colleen P. Fitzharris

Michigan Law Review

The Impartial Jury Clause of the Sixth Amendment requires that the venire from which the state and the defendant draw a twelve-person petit jury be a fair cross-section of the community. The Supreme Court announced a three-prong test in Duren v. Missouri to help courts determine whether there has been a Sixth Amendment violation: (1) whether a distinctive group in the community was excluded; (2) whether the venire was not a fair and reasonable representation of the county population as a whole; and (3) whether that underrepresentation was the result of systematic exclusion. When evaluating the second prong, courts routinely …

The Seat-Belt Defense In Georgia, Jacob E. Daly

Mercer Law Review

For a doctrine of common-law origin, the seat-belt defense is a relatively youthful fifty years old. Credit for the first use of this defense has been attributed to the defendant in Stockinger v. Dunisch, a 1964 case in Sheboygan County, Wisconsin, in which the plaintiff's damages were reduced by 10% based on the jury's finding that she was negligent for failing to use a seat belt. Despite this initial success, most states have rejected the defense, some legislatively and others judicially, and therefore exclude evidence of a plaintiffs failure to use an available seat belt. The Georgia Court of …

Evidence, John E. Hall Jr., W. Scott Henwood, Alex Battey

Mercer Law Review

This year's Survey of evidence finds us in a unique position. The overhaul of the Georgia Evidence Code (Evidence Code) went into effect on January 1, 2013. Therefore, appellate cases continue to emerge that interpret and apply the former rules, providing insight and raising questions about how the new rules have changed the face of evidence in Georgia. This Survey highlights cases decided by the Georgia Court of Appeals and the Georgia Supreme Court between June 1, 2012 and May 31, 2013, that illustrate this tension between the old and new rules of evidence. These cases are presented alongside other …

Product Liability, Franklin P. Brannen Jr.

Mercer Law Review

This Article surveys developments in Georgia product liability law between June 1, 2012 and May 31, 2013. The Article covers noteworthy cases decided during this period by the Georgia Court of Appeals, the United States Court of Appeals for the Eleventh Circuit, and the United States district courts located in Georgia.

Trial Practice And Procedure, Brandon L. Peak, John C. Morrison Iii, Tedra C. Hobson, Mary K. Weeks, Jeb Butler, Anna W. Howard, Morgan E. Duncan

Mercer Law Review

This Article addresses several significant cases and legislation of interest to the Georgia civil trial practitioner occurring during the survey period of this publication.

A Deal Is A Deal: Plea Bargains And Double Jeopardy After Ohio V. Johnson, Philip Chinn

Seattle University Law Review

The Double Jeopardy Clause provides that no person will “be subject for the same offence to be twice put in jeopardy of life or limb.” On March 10, 2004, Pedro Cabrera made a statement that cost him fourteen years of his life: he proclaimed his innocence. The court accepted this plea and ordered a finding of guilty with a recommended sentence of six years. However, during an exchange that followed, Mr. Cabrera asserted that he was actually innocent but that he preferred “to take the time” instead of proceeding to trial. The judge then refused to accept Mr. Cabrera’s guilty …

A Mild Winter: The Status Of Environmental Preliminary Injunctions, Sarah J. Morath

Seattle University Law Review

Since the enactment of environmental legislation in the 1970s, the preliminary injunction standard articulated by the Supreme Court for environmental claims has evolved from general principles to enumerated factors. In Winter v. Natural Resource Defense Council, Inc., the Court’s most recent refinement, the Court endorsed but failed to explain the application of a common four-factor test when it held that the alleged injury to marine mammals was outweighed by the public interest of a well-trained and prepared Navy. While a number of commentators have speculated about Winter’s impact on future environmental preliminary injunctions, this article seeks to more precisely determine …

Character, Liberalism, And The Protean Culture Of Evidence Law, Daniel D. Blinka

Seattle University Law Review

It is time to rethink character evidence. Long notorious as the most frequently litigated evidence issue, character doctrine plagues courts, trial lawyers, and law students with its infamously “grotesque” array of nonsensical rules, whimsical distinctions, and arcane procedures. Character is a calculation of social worth and value; it is the sum total of what others think of us, whether expressed as their own opinion or the collective opinions of many (reputation). Once we grasp that character is a social construct, we are in a better position to address some of the problems that plague evidence law. To provide needed clarity …

Is Expert Evidence Really Different?, Frederick Schauer, Barbara A. Spellman

Notre Dame Law Review

The problem with expert evidence is not the inappropriateness of the Daubert approach. The narrow focus on Daubert is misplaced. The real problem is with the more deeply entrenched view that expert evidence should be excluded under circumstances in which analogous non-expert evidence would be admitted. Daubert embodies the distinction between expert and non-expert evidence, but it is that very distinction, and not just Daubert, that is the problem. Daubert has indeed transformed modern evidence law, but perhaps it has awakened us to the need for a more profound transformation, one in which the very foundations of treating expert …

The Misbegotten Judicial Resistance To The Daubert Revolution, David E. Bernstein

Notre Dame Law Review

This Article reviews the history of the evolution of the rules for the admissibility of expert testimony since the 1980s, the revolutionary nature of what ultimately emerged, and the consistent efforts by recalcitrant judges to stop or roll back the changes, even after Rule 702 was amended to explicitly incorporate a strict interpretation of those changes.

Part I reviews the law of expert testimony through the Supreme Court’s Daubert decision. Critics had charged for decades that the adversarial system was a failure with regard to expert testimony. Parties to litigation, they argued, often presented expert testimony of dubious validity because …

Confusion Isn't Everything, William Mcgeveran, Mark P. Mckenna

Notre Dame Law Review

The typical shorthand justification for trademark rights centers on avoiding consumer confusion. But in truth, this encapsulation mistakes a method for a purpose: confusion merely serves as an indicator of the underlying problems that trademark law seeks to prevent. Other areas of law accept confusion or mistake of all kinds, intervening only when those errors lead to more serious harms. Likewise, every theory of trademark rights considers confusion troubling solely because it threatens more fundamental values such as fair competition or informative communication. In other words, when it comes to the deep purposes of trademark law, confusion isn’t everything.

Yet …

How Much Is That Lawsuit In The Window? Pricing Legal Claims, Maya Steinitz

Vanderbilt Law Review

Assessing the value of legal claims is the sixty-four thousand dollar question (no pun intended) of civil litigation. Clients, as every litigator knows, often come into their attorneys' offices with a belief that they know how much their claim is worth. The attorney is then asked to validate that number. Alternately, clients can come to their attorneys with a grievance-I have been injured, a counter-party breached its contract with me, I have been fired, our rainforest has been devastated by a mining company-and ask the attorney for an assessment of how much their grievance might be worth. Contingency lawyers, who …

An Implausible Standard For Affirmative Defenses, Stephen Mayer

Michigan Law Review

In the wake of Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, the federal district courts split over whether to apply Twombly’s plausibility standard to the pleading of affirmative defenses. Initially, a majority of district courts extended Twombly to defense pleadings, but recently the courts that have declined to extend the plausibility standard have gained majority status. This Note provides a comprehensive analysis of each side of the plausibility split, identifying several hidden assumptions motivating the district courts’ decisions. Drawing from its analysis of the two opposing positions, this Note responds to the courts that have applied plausibility pleading …

Screening Legal Claims Based On Third-Party Litigation Finance Agreements And Other Signals Of Quality, Michael Abramowicz, Omer Alper

Vanderbilt Law Review

The advent of third-party litigation finance introduces a new gatekeeper to the legal process. Before deciding to lend money to a plaintiff, a litigation finance company will conduct at least some review and make an assessment of the quality of the case.' Since litigation finance loans are generally nonrecourse, a litigation finance company is likely to refuse to loan money to plaintiffs with the weakest cases. Such voluntary claim screening may improve social welfare by reducing the incidence of frivolous claims. But the volume of frivolous claims may still be higher than it would be in a world without third-party …

An Argument Against Open-File Discovery In Criminal Cases, Brian P. Fox

Notre Dame Law Review

This Note argues that, for the most part, open-file discovery proponents fail to recognize the added burden that defense counsel would face under a regime in which all items of the prosecution’s evidence are available for investigation by the defense. This is particularly true in the eighty to ninety percent of criminal cases where the defendant is indigent, and the court appointed defense counsel is operating under strict resource constraints.

This Note also argues that advocates of open-file discovery fail to recognize that in the majority of cases involving prosecutorial misconduct, the prosecutor’s intentional wrongdoing will be sufficient to overshadow …

Supplementing The Record In The Federal Courts Of Appeals: What If The Evidence You Need Is Not In The Record?, George C. Harris, Xiang Li

The Journal of Appellate Practice and Process

No abstract provided.

Adaptation And The Courtroom: Judging Climate Science, Kirsten Engel, Jonathan Overpeck

Michigan Journal of Environmental & Administrative Law

Climate science is increasingly showing up in courtroom disputes over the duty to adapt to climate change. While judges play a critical role in evaluating scientific evidence, they are not apt to be familiar with the basic methods of climate science nor with the role played by peer review, publication, and training of climate scientists. This Article is an attempt to educate the bench and the bar on the basics of the discipline of climate science, which we contend is a distinct scientific discipline. We propose a series of principles to guide a judge’s evaluation of the reliability and weight …

Testifying Minors: Pre-Trial Strategies To Reduce Anxiety In Child Witnesses, Dawn Hathaway Thoman

Nevada Law Journal

No abstract provided.

Closing The Door On The Public Policy Exception To At- Will Employment: How The Washington State Supreme Court Erroneously Foreclosed Wrongful Discharge Claims For Whistleblowers In Cudney V. Alsco, Inc., Laura A. Turczanski

Seattle University Law Review

In 2008, Matthew Cudney was terminated from his employment with ALSCO, Inc. a few weeks after reporting to his supervisor and human resources manager that he observed the branch general manager appearing intoxicated at work and driving away in a company vehicle. Cudney brought an action for wrongful discharge in violation of public policy, claiming that he was terminated in retaliation for reporting the manager’s drinking and driving. In a 5–4 decision, the Washington Supreme Court held that Cudney’s tort claim of wrongful discharge in violation of public policy could not proceed. This Note contends that the Cudney court erred …

Statutes Of Ill Repose And Threshold Canons Of Construction: A Unified Approach To Ambiguity After San Carlos Apache Tribe V. United States, Daniel Lee

Seattle University Law Review

Historically, the San Carlos Apache Tribe depended on the Gila River to irrigate crops and sustain a population of around 14,000 tribe members. The river is also sacred to the Tribe and central to the Tribe’s culture and spirituality. Initially, the federal government had recognized the Tribe’s dependence on the Gila River by reserving, under the Winters doctrine, water rights necessary to support the San Carlos Apache Reservation. Acting as the Tribe’s trustee, the United States entered into the Globe Equity Decree (the Decree), which prevented the San Carlos Apache Tribe from claiming water rights under the Winters doctrine and …

The Gay Accent, Gender, And Title Vii Employment Discrimination, Ryan Castle

Seattle University Law Review

While race, religion, ethnicity, and sex will always remain salient social issues in our nation, sexual orientation is currently at the forefront of our national debate and will likely not abate in the foreseeable future. Federal courts, for example, struggle in differentiating sex, gender, and sexuality when adjudicating Title VII employment discrimination claims. Because Title VII does not protect employees from sexual orientation-based discrimination, plaintiffs who are or are perceived to be of a sexual minority have difficulty proving a valid sex-based discrimination claim in federal court. This difficulty arises because one cannot perceive sex, gender, and sexuality without muddling …

Class Actions, Thomas M. Byrne, Stacey Mcgavin Mohr

Mercer Law Review

This year saw the United States Court of Appeals for the Eleventh Circuit set the ground rules for collateral attacks on class settlements and elaborate on the predominance requirements for class certification. The court also considered the enforceability of a, variety of arbitration provisions in light of the United States Supreme Court's decision in AT&T Mobility LLC v. Concepcion and examined standing issues common in data security breach class actions.

Trial Practice And Procedure, John O'Shea Sullivan, Ashby Kent Fox, Amanda E. Wilson

Mercer Law Review

The 2012 survey period yielded several noteworthy decisions relating to federal trial practice and procedure in the United States Court of Appeals for the Eleventh Circuit, several of which involved issues of first impression. This Article analyzes recent developments in the Eleventh Circuit, including significant rulings in the areas of arbitration, statutory interpretation, subject matter jurisdiction, and civil procedure.

Walking The Class Action Maze: Toward A More Functional Rule 23, Robert G. Bone

University of Michigan Journal of Law Reform

Over roughly the past fifteen years, the Supreme Court and lower federal courts have limited access to class actions. Many of the more restrictive decisions-such as Amchem Products, Inc. v. Windsor, Ortiz v. Fibreboard Corp., and Wal- Mart Stores, Inc. v. Dukes-are based on interpretations of Rule 23 and thus fall within the power of the Advisory Committee and rulemaking process to modify. This Article proposes revisions to Rule 23 designed to deal with some of these decisions and to make the class action a more pragmatic and functional device. It focuses on two areas: (1) the constraints imposed by …

The Future Of Classwide Punitive Damages, Catherine M. Sharkey

University of Michigan Journal of Law Reform

Conventional wisdom holds that the punitive damages class action is susceptiblenot only to doctrinal restraints imposed on class actions but also to constitutionaldue process limitations placed on punitive damages. Thus, it would seem that theprospects for punitive damages classes are even grimmer than for class actionsgenerally.This conventional picture misunderstands the role of punitive damages and, inparticular, the relationship between class actions and punitive damages. It eitherignores or underestimates the distinctly societal element of punitive damages, whichmakes them especially conducive to aggregate treatment. Furthermore, punitivedamages classes offer a solution to the constitutional due process problem of juriesawarding "classwide" damages in a …

The Future Of Securities Class Actions Against Foreign Companies: China And Comity Concerns, Dana M. Muir, Junhai Liu, Haiyan Xu

University of Michigan Journal of Law Reform

In Morrison v. National Australia Bank Ltd., the U.S. Supreme Court limited the application of U.S. securities fraud law in transnational situations. The Supreme Court noted that its decision was influenced by international comity considerations. In this Article, we evaluate the availability of class actions in China in cases involving alleged securities fraud. Because we find that the availability of those actions is too limited to fully protect U.S. shareholders, we argue that U.S. investors should be permitted to bring securities fraud class actions against non-U.S. companies whose securities are traded on a U.S. exchange regardless of where those investors …

Public Duties, Private Rights: Privacy And Unsubstantiated Allegations In Washington’S Public Records Act, Robert E. Miller

Seattle University Law Review

Open government laws allow private citizens to monitor public servants. But this vital function of access presents a clash of competing interests: the privacy of public employees versus the public’s right to know. Washington’s Public Records Act (PRA) seeks to balance these interests, and the Washington Supreme Court has fought to adhere to the PRA’s spirit of open government while creating bright-line rules for the ease of government agencies. The Bainbridge Island Police Guild court held that investigative reports of unsubstantiated allegations of sexual misconduct against public officials are highly offensive to a reasonable person and that the public has …

A Barrier To Child Welfare Reform: The Supreme Court’S Flexible Approach To Federal Rule Of Civil Procedure 60(B)(5) And Granting Relief To States In Institutional Reform Litigation, Rachel Dunnington

Seattle University Law Review

In a recent decision, Horne v. Flores, the Court demanded a broader and more flexible application of Federal Rule of Civil Procedure (Rule) 60(b)(5). In doing so, the Court opened the door for states to seek relief from court-enforced agreements like consent decrees. This decision undermines the use of institutional reform litigation as a means of fixing the child welfare system and thus deals a further blow to the nation’s most vulnerable citizens. This Note will discuss Horne’s impact on consent decrees stemming from institutional reform litigation in child welfare. Part II will explore the history of Rule 60 as …

Toward An Empirical And Theoretical Assessment Of Private Antitrust Enforcement, Joshua P. Davis, Robert H. Lande

Seattle University Law Review

The predominant view in the antitrust field has been that private enforcement, and especially class action cases, yields little or no positive results. This Article analyzes these twenty cases, compares and contrasts their analysis with that of our earlier group of forty cases, and draws new insights from the results of all sixty combined. This Article demonstrate that private antitrust litigation has provided a substantial amount of compensation for victims of anticompetitive behavior: at least $33.8 to $35.8 billion. The studies also demonstrate that private antitrust enforcement has had an extremely strong deterrent effect. In fact, this research demonstrates that …

Perception And Persuasion In Legal Argumentation: Using Informal Fallacies And Cognitive Biases To Win The War Of Words, Cory S. Clements

BYU Law Review

No abstract provided.