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Burdens Of Proof And Qualified Immunity, Kenneth J. Duvall
Burdens Of Proof And Qualified Immunity, Kenneth J. Duvall
Kenneth J Duvall
Despite the need to strike a proper balance between effective § 1983 suits to deter government misconduct and corresponding, robust defenses to deter frivolous suits, courts across the nation cannot agree on the fundamental questions of what the proper defenses to § 1983 actions are or how to allocate the burdens of proof in such litigation. This Article would remedy this situation, proposing an approach that offers both a single defense to § 1983 claims and a uniform allocation of the burdens of proof when that defense is raised. In Part I, this Article briefly explains the burdens of proof, …
Rules, Standards, And The Attorney-Client Privilege: When Is The Privilege At-Issue In The Discovery Rule And Other Contexts?, Kenneth J. Duvall
Rules, Standards, And The Attorney-Client Privilege: When Is The Privilege At-Issue In The Discovery Rule And Other Contexts?, Kenneth J. Duvall
Kenneth J Duvall
Striking the right balance between a robust attorney-client privilege and a judicial system that maximizes access to the best evidence has always been difficult. In recent decades, the privilege battles have in large part been waged over one particular exception to the privilege: the “at-issue” carve-out. Under this exception, the holders of the privilege waive it when they place otherwise privileged communications at issue in the litigation not through outright consent but instead through their conduct. The troubling question has therefore been: what actions suffice to place communications at issue? Privilege defenders consider confidential communications to be at issue only …