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Full-Text Articles in Law
Independent Judicial Research In The Daubert Age, Edward K. Cheng
Independent Judicial Research In The Daubert Age, Edward K. Cheng
Duke Law Journal
The Supreme Court's Daubert trilogy places judges in the unenviable position of assessing the reliability of often unfamiliar and complex scientific expert testimony. Over the past decade, scholars have therefore explored various ways of helping judges with their new gatekeeping responsibilities. Unfortunately, the two dominant approaches, which focus on doctrinal tests and external assistance mechanisms, have been largely ineffective. This Article advocates for a neglected but important method for improving scientific decisionmaking--independent judicial research. It argues that judges facing unfamiliar and complex scientific admissibility decisions can and should engage in independent library research to better educate themselves about the underlying …
Advisory Counterparts To Constitutional Courts, Christopher S. Elmendorf
Advisory Counterparts To Constitutional Courts, Christopher S. Elmendorf
Duke Law Journal
In recent years, legal scholars have paid a great deal of attention to the emergence of constitutional courts and judicial review in democracies worldwide, yet an intriguing parallel development in democratic constitutionalism has gone largely unnoticed: the establishment of independent bodies which, like constitutional courts, are concerned with foundational commitments of liberal democracy, but which advance these commitments mainly through investigations and advice-giving. Lacking de jure authority to block the implementation of unconstitutional laws and policies, the new advice givers instead make their contributions ex ante, identifying problems that warrant legislative attention and helping to craft laws and regulations that …