Law Commons^™

§4.25 Civil Settlement Offers Generally Excluded, Christopher B. Mueller, Laird Kirkpatrick, Liesa Richter

GW Law Faculty Publications & Other Works

This article addresses the admissibility of settlement offers and settlement discussions under FRE 408. It discusses the requirement that the claim must be disputed and a party must intend to make an offer of compromise. The rule applies to settlements with third parties and also to criminal cases.

§4.10 Unfair Prejudice, Confusion, Delay, Collateral, Christopher B. Mueller, Laird Kirkpatrick, Liesa Richter

GW Law Faculty Publications & Other Works

This article addresses the exclusion of evidence under FRE 403 for unfair prejudice and the other grounds of exclusion listed in the rule such as confusion, delay, misleading the jury, and being cumulative.

§1.7 Evidence Errors—Harmless, Christopher B. Mueller, Laird Kirkpatrick, Lisea Richter

GW Law Faculty Publications & Other Works

This article discusses when evidentiary error is harmless. It addresses the Kotteakos guidelines and the competing standards set forth by courts. It also addresses the several ways by which evidentiary error may be cured at trial.

§1.5 Offers Of Proof, Christopher B. Mueller, Laird Kirkpatrick, Lisea Richter

GW Law Faculty Publications & Other Works

This article discusses when offers of proof are required and the different methods by which they may be made. It discusses the requirement that they be made outside the jury’s presence and that repeating offers are often unnecessary.

§8.85 The Davis “Emergency Exception”, Christopher B. Mueller, Laird Kirkpatrick, Liesa Richter

GW Law Faculty Publications & Other Works

This article addresses the “emergency exception” to the Crawford doctrine which allows out-of-court statements to be admitted against a criminal defendant when the “primary purpose” of making such statements was to enable a response to an “ongoing emergency.” It discusses the facts of Davis v. Washington which created the exception and subsequent cases determining the scope of the exception, including the Bryant and Clark cases.

§7.7 Reliability Standard (Daubert, Frye), Christopher B. Mueller, Laird Kirkpatrick, Liesa Richter

GW Law Faculty Publications & Other Works

This article addresses the Daubert standard of reliability for the admission of scientific evidence. It also addresses the requirements of FRE 702, which was amended after Daubert to impose a reliability standard for all expert testimony. It discusses the implications of this requirement, the scope of review, and the conflict among state authorities about the applicable standard for admitting scientific evidence or expert testimony generally.

§5.35 Psychotherapist-Patient Privilege, Christopher B. Mueller, Laird Kirkpatrick, Liesa Richter

GW Law Faculty Publications & Other Works

This article addresses the psychotherapist-patient privilege which was recognized by the Supreme Court in Jaffee v. Redmond. The privilege covers licensed social workers as well as licensed psychiatrists and psychologists. The articles discusses the scope of the privilege and exceptions to it.

§5.32 Marital Confidences Privilege, Christopher B. Mueller, Laird Kirkpatrick, Liesa Richter

GW Law Faculty Publications & Other Works

This article addresses the marital confidences privilege. This privilege applies to confidential communications by spouses made during the course of their marriage. The privilege continues even after the termination of the marriage. The privilege protects communications only, but includes conduct that is communicative in nature. Under the prevailing view, both spouses hold the confidences privilege.

§5.31 Spousal Testimonial Privilege, Christopher B. Mueller, Laird Kirkpatrick, Liesa Richter

GW Law Faculty Publications & Other Works

This article addresses the spousal testimonial privilege. It discusses the rationale and history of the privilege as well as its current requirements. The privilege allows a spouse to refuse to testify against the other spouse in a criminal proceeding, but does not allow a criminal defendant to block the testimony by his or her spouse if the testifying spouse chooses to waive the privilege. The privilege requires a lawful marriage and does not apply to sham marriages.

§5.28 Waiver By Voluntary Disclosure, Christopher B. Mueller, Laird Kirkpatrick, Liesa Richter

GW Law Faculty Publications & Other Works

This article addresses waiver of the attorney-client privilege by voluntary disclosure. The central requirements of such waiver are that it be voluntary and disclose a “significant part” of the privileged communication. Selective disclosure to particular individuals or entities will generally waive the privilege as to all. However, disclosure to another person within a privilege will not result in waiver. The article concludes by discussing the effect of agreements between attorneys about waiver and pretrial orders by courts under FRE 502.

§5.19 Client Identity; Fee Arrangements, Christopher B. Mueller, Laird Kirkpatrick, Liesa Richter

GW Law Faculty Publications & Other Works

This article addresses the question of whether the attorney-client privilege covers the identity of the client and fee arrangements with the client. It discusses five recurring patterns where this issue arises and the holdings of courts in those situations.

Unbundling Populism, David Fontana

GW Law Faculty Publications & Other Works

Populism is having its moment on our constitutional center stage, but the way we are treating this moment is adding to the risks that populism poses to our liberal democratic constitutional order. Populism has primarily been defined in our public discussions by the loudest self-identifying populists active in democratic politics at the moment. Populism has therefore often been treated as a bundled-together concept, merging not just anti-establishment sentiments, but also authoritarian and xenophobic ones as well. Populism is an eight-letter word that is then treated like a pejorative four-letter one. Populism, though, is a they, and not an it. The …

Global Legal Pluralism As A Normative Project, Paul Schiff Berman

GW Law Faculty Publications & Other Works

Legal pluralists have long recognized that societies consist of such multiple overlapping normativecommunities. These communities are sometimes state based but sometimes not, and they are sometimes formal, official, and governmental, but again sometimes they are not. Scholars studying interactions among these multiple communities have often used the term “legal pluralism” to describe the inevitable intermingling of these normative systems.

In recent decades, a new application of pluralist insights has emerged in the international and transnational realm. This new legal pluralism research was born in the decades following the collapse of the bipolar Cold War order in 1989. During this period, …

Sexism In The 'Bathroom Debates': How Bathrooms Really Became Separated By Sex, W. Burlette Carter

GW Law Faculty Publications & Other Works

This article challenges two widely-embraced theories about how public intimate spaces (e.g., toilets, locker rooms, showers, etc. hereinafter called "bathrooms") first became separated by sex. The first challenged theory claims that the very first instance of sex-separation in public bathrooms occurred in 1739 at a ball held in a restaurant in Paris. Under this first view, sex-separation first emerged as a sign of upper-class gentility and elitism. The second challenged theory argues that a consistent practice of differentiating bathrooms by sex did not emerge until the late nineteenth century. According to this view, bathroom sex-separation was imposed when authorities overreacted …

Bifurcating Settlements, Michael B. Abramowicz, Sarah Abramowicz

GW Law Faculty Publications & Other Works

In settling a lawsuit, parties agree on their obligations to one another, but they need not separately address each issue, claim, or remedy that a trial court would have confronted. The legal system, however, can bifurcate the settle-ment process, requiring separate resolution of components of a settlement. Bi-furcation can protect third parties, for example, by preventing divorcing parents from trading child custody for money. In addition to identifying a wide range of contexts in which preventing trade-offs may be desirable, this Article shows that bifurcation will generally have only modest (and sometimes beneficial) effects on settlement rates.