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Articles 1 - 30 of 44
Full-Text Articles in Law
Climate Change Science And The Daubert Standard, Fred K. Morrison, Craig Manson, Matthew C. Wickersham
Climate Change Science And The Daubert Standard, Fred K. Morrison, Craig Manson, Matthew C. Wickersham
William & Mary Environmental Law and Policy Review
Climate change science attempts to predict the future based on complex modeling of potential levels of CO2, other greenhouse gases, manmade conditions, and naturally occurring events. Even the most widely cited analysis of climate change studies expressly acknowledges the limitations on accurately predicting the effects of climate change on anything other than a macro basis.1 These studies acknowledge substantial uncertainty in the prediction of climate change and its effects on a regional level, much less on a local level.2 Recent lawsuits brought by the State of Rhode Island; the counties of King (Washington), Marin (California), and San Mateo (California); the …
Conference On Best Practices For Managing Daubert Questions, Daniel J. Capra, David G. Campbell, Debra A. Livingston, James P. Bassett, Shelly Dick, Traci L. Lovitt, Thomas Marten, Kathryn N. Nester, Thomas D. Schroeder, Elizabeth J. Shapiro, Timothy Lau, Vince Chhabria, John Z. Lee, William H. Orrick Iii, Edmund A. Sargus Jr., Sarah A. Vance, Edward K. Cheng
Conference On Best Practices For Managing Daubert Questions, Daniel J. Capra, David G. Campbell, Debra A. Livingston, James P. Bassett, Shelly Dick, Traci L. Lovitt, Thomas Marten, Kathryn N. Nester, Thomas D. Schroeder, Elizabeth J. Shapiro, Timothy Lau, Vince Chhabria, John Z. Lee, William H. Orrick Iii, Edmund A. Sargus Jr., Sarah A. Vance, Edward K. Cheng
Faculty Scholarship
This article is a transcript of the Philip D. Reed Lecture Series Conference on Best Practices for Managing Daubert Questions, held on October 25, 2019, at Vanderbilt Law School under the sponsorship of the Judicial Conference Advisory Committee on Evidence Rules. The transcript has been lightly edited and represents the panelists’ individual views only and in no way reflects those of their affiliated firms, organizations, law schools, or the judiciary.
Diamonds In The Rough: A Review Of Tiffany V. Costco And A Call To Apply Daubert To The Admissibility Of Consumer Survey Evidence In Trademark Infringement Litigation, Michael J. Borger
Diamonds In The Rough: A Review Of Tiffany V. Costco And A Call To Apply Daubert To The Admissibility Of Consumer Survey Evidence In Trademark Infringement Litigation, Michael J. Borger
Touro Law Review
No abstract provided.
When Religious Belief Becomes Scientific Opinion: Burwell V. Hobby Lobby And The Unraveling Of Federal Rule 702, Meredith Rachel Mandell
When Religious Belief Becomes Scientific Opinion: Burwell V. Hobby Lobby And The Unraveling Of Federal Rule 702, Meredith Rachel Mandell
Northwestern Journal of Law & Social Policy
No abstract provided.
How Sound Is The Science? Applying Daubert To Biomechanical Experts’ Injury Causation Opinions, Loren Peck
How Sound Is The Science? Applying Daubert To Biomechanical Experts’ Injury Causation Opinions, Loren Peck
Washington and Lee Law Review
No abstract provided.
Dna Evidence: Probability, Population Genetics, And The Courts, David H. Kaye
Dna Evidence: Probability, Population Genetics, And The Courts, David H. Kaye
David Kaye
To help meet the challenge of presenting properly performed DNA tests within the post-Daubert legal framework, this article outlines the statistical procedures that have been employed or proposed to provide judges and juries with quantitative measures of probative value, describes more fully how the courts have dealt with these procedures, and evaluates the opinions and the statistical analyses from the standpoint of the law of evidence.
Specifically, the article outlines the procedure used to declare whether two samples of DNA "match," and how shrinking the size of the "match window," as some defendants have urged, will decrease the risk of …
Defending Daubert: It's Time To Amend Federal Rule Of Evidence 702, David E. Bernstein, Eric G. Lasker
Defending Daubert: It's Time To Amend Federal Rule Of Evidence 702, David E. Bernstein, Eric G. Lasker
William & Mary Law Review
The 2000 amendments to Rule 702 sought to resolve the debate that had emerged in the courts in the 1990s over the proper meaning of Daubert by codifying the rigorous and structured approach to expert admissibility announced in the Daubert trilogy. Fifteen years later, however, the amendments have only partially accomplished this objective. Many courts continue to resist the judiciary’s proper gatekeeping role, either by ignoring Rule 702’s mandate altogether or by aggressively reinterpreting the Rule’s provisions.
Informed by this additional history of recalcitrance, the time has come for the Judicial Conference to return to the drafting table and finish …
The Sitting Ducks Of Securities Class Action Litigation: Bio-Pharmas And The Need For Improved Evaluation Of Scientific Data, Stuart R. Cohn, Erin M. Swick
The Sitting Ducks Of Securities Class Action Litigation: Bio-Pharmas And The Need For Improved Evaluation Of Scientific Data, Stuart R. Cohn, Erin M. Swick
Stuart R. Cohn
Rule 10b-5, a powerful weapon against any publicly-listed company whose share price drops on adverse news, is particularly skewed against pharmaceutical and other bio-technology companies (bio-pharmas). It is not a coincidence that there is a disproportionate number of class actions filed against bio-pharmas. The volume and complexity of data underlying most bio-pharma cases create enormous outcome uncertainties, settlement pressures, and potentially huge contingent liabilities over substantial periods of time. The vulnerability and risks that bio-pharmas face in Rule 10b-5 class actions are unique among all publicly-traded industries, yet many cases proceed along traditional grounds without courts employing either their statutory …
Controversial Defenses To Legal Malpractice Claims: Are Attorney-Experts Being Asked To Be Advocates?, David S. Caudill
Controversial Defenses To Legal Malpractice Claims: Are Attorney-Experts Being Asked To Be Advocates?, David S. Caudill
St. Mary's Journal on Legal Malpractice & Ethics
Attorney-experts in legal malpractice litigation are like many other experts. Although easily distinguishable from experts offering science based testimony, attorney expertise is similar to that of witnesses offering experience-based testimony, and very much like the expertise of a physician in a medical malpractice case. An attorney-expert is, however, somewhat unique among experts in terms of the type of expertise offered, the inherent risk that the expert's testimony will invade the province of the judge or jury, and, I believe, the risk of over-testifying. First, there is a problem of defining the attorney-expert's "expertise" to ensure that the expert is not …
The Hidden Daubert Factor: How Judges Use Error Rates In Assessing Scientific Evidence, John B. Meixner Jr., Shari Seidman Diamond
The Hidden Daubert Factor: How Judges Use Error Rates In Assessing Scientific Evidence, John B. Meixner Jr., Shari Seidman Diamond
Scholarly Works
In Daubert v. Merrell Dow Pharmaceuticals, the United States Supreme Court provided a framework under which trial judges must assess the evidentiary reliability of scientific evidence whose admissibility is challenged. One factor of the Daubert test, the “known or potential rate of error” of the expert’s method, has received considerably less scholarly attention than the other factors, and past empirical study has indicated that judges have a difficult time understanding the factor and use it less frequently in their analyses as compared to other factors. In this paper, we examine one possible interpretation of the “known or potential rate of …
Reliable Science: Overcoming Public Doubts In The Climate Change Debate, Michelle S. Simon, William Pentland
Reliable Science: Overcoming Public Doubts In The Climate Change Debate, Michelle S. Simon, William Pentland
William & Mary Environmental Law and Policy Review
No abstract provided.
Will Contests: From Start To Finish., Joyce Moore
Will Contests: From Start To Finish., Joyce Moore
St. Mary's Law Journal
This Article primarily focuses on the practical problems facing attorneys and courts when evaluating and proving up a will or trust in contested cases. The focus extends further into the special procedural and evidentiary rules applicable to these actions, the use and misuse of summary judgment proceedings in these cases, and some observations regarding developing trends and strategies in will and trust contest litigation. Admittedly, this area of practice is a melting pot of presumptions, exceptions, threshold hurdles, capacity qualms, evidentiary issues, strategic clauses, and countless other headache-inducing legal issues. Yet, attorneys must diligently juggle all of them while also …
The Limitations And Admissibility Of Using Historical Cellular Site Data To Track The Location Of A Cellular Phone, Aaron Blank
The Limitations And Admissibility Of Using Historical Cellular Site Data To Track The Location Of A Cellular Phone, Aaron Blank
Richmond Journal of Law & Technology
Imagine someone has just committed a crime. Shortly thereafter, law enforcement responds and quickly apprehends a suspect on the scene or close by. In order to prove guilt beyond a reasonable doubt, the time and place of apprehending the suspect, combined with witness testimony or physical evidence, may be enough for the prosecution to meet its burden of proof.
Fire Pattern Analysis, Junk Science, Old Wives Tales, And Ipse Dixit: Emerging Forensic 3d Imaging Technologies To The Rescue?, Thomas R. May
Fire Pattern Analysis, Junk Science, Old Wives Tales, And Ipse Dixit: Emerging Forensic 3d Imaging Technologies To The Rescue?, Thomas R. May
Richmond Journal of Law & Technology
Forensic science is undergoing a period of transformation as legal and scientific forces converge and force older forensic sciences toward a new scientific paradigm. Fire investigative undertakings are not an exception to this trend. Skeptical defense attorneys who routinely formulate astute Daubert challenges to contest the scientific validity and reliability of every major forensic science discipline are one catalyst to this revolution. Furthermore, a steady influx of novel scientific advances makes possible the formulation of consistent and scientifically-based quantitative forensic evidence analyses to overcome the “undervalidated and oversold” problems affecting many areas of forensic science.
Hall's Standards Of Review In Texas., W. Wendell Hall, O. Rey Rodriguez, Rosemarie Kanusky, Mark Emery
Hall's Standards Of Review In Texas., W. Wendell Hall, O. Rey Rodriguez, Rosemarie Kanusky, Mark Emery
St. Mary's Law Journal
Standards of review distribute power within the judicial branch by defining the relationship between trial and appellate courts. These standards “frame the issues, define the depth of review, assign power among judicial actors, and declare the proper materials to review.” Standards of review are the cornerstones of appeals. These standards must be woven into the discussion of the facts and substantive law in a manner which persuades the appellate court that the trial court erred. Litigants must measure their factual and legal arguments against the appropriate rubric to write an effective and persuasive brief. Appellate judges agree that mechanical recitation …
The Sitting Ducks Of Securities Class Action Litigation: Bio-Pharmas And The Need For Improved Evaluation Of Scientific Data, Stuart R. Cohn, Erin M. Swick
The Sitting Ducks Of Securities Class Action Litigation: Bio-Pharmas And The Need For Improved Evaluation Of Scientific Data, Stuart R. Cohn, Erin M. Swick
UF Law Faculty Publications
Rule 10b-5, a powerful weapon against any publicly-listed company whose share price drops on adverse news, is particularly skewed against pharmaceutical and other bio-technology companies (bio-pharmas). It is not a coincidence that there is a disproportionate number of class actions filed against bio-pharmas. The volume and complexity of data underlying most bio-pharma cases create enormous outcome uncertainties, settlement pressures, and potentially huge contingent liabilities over substantial periods of time. The vulnerability and risks that bio-pharmas face in Rule 10b-5 class actions are unique among all publicly-traded industries, yet many cases proceed along traditional grounds without courts employing either their statutory …
Civil Jury Trials R.I.P. - Can It Actually Happen In America Essay., Royal Furgeson
Civil Jury Trials R.I.P. - Can It Actually Happen In America Essay., Royal Furgeson
St. Mary's Law Journal
Civil jury trials in America have been declining at a steady rate for the last thirty years. This is a well-documented trend. If the trend continues, within the foreseeable future, civil jury trials in American may eventually become extinct. Jury trials have been central to justice in America and its states since their inception. Their importance has been stated as bringing accountability to the law and to society. As all persons, even the powerful and wealthy ones, are accountable under the law. Yet, as important as juries and jury trials are to the health of justice in America, the civil …
Torts And Innovation, Gideon Parchomovsky, Alex Stein
Torts And Innovation, Gideon Parchomovsky, Alex Stein
Michigan Law Review
This Essay exposes and analyzes a hitherto overlooked cost of tort law: its adverse effect on innovation. Tort liability for negligence, defective products, and medical malpractice is determined by reference to custom. We demonstrate that courts' reliance on custom and conventional technologies as the benchmark of liability chills innovation and distorts its path. Specifically, recourse to custom taxes innovators and subsidizes replicators of conventional technologies. We explore the causes and consequences of this phenomenon and propose two possible ways to modify tort law in order to make it more welcoming to innovation.
From The Wrong End Of The Telescope: A Response To Professor David Bernstein, Margaret A. Berger, Aaron D. Twerski
From The Wrong End Of The Telescope: A Response To Professor David Bernstein, Margaret A. Berger, Aaron D. Twerski
Michigan Law Review
On the pages of this law review, in an article entitled Uncertainty and Informed Choice: Unmasking Daubert, the authors argued for the recognition of a new product liability cause of action when drug companies fail to warn about uncertain risks attendant to the use of non-therapeutic drugs whose purpose is to enhance lifestyle. We noted that in the post-Daubert era, plaintiffs have faced increasing difficulty in proving that a given toxic agent was causally responsible for the injuries suffered after ingesting a drug. That plaintiffs cannot overcome the barriers to proving injury causation does not mean that defendants have met …
Learning The Wrong Lessons From "An American Tragedy": A Critique Of The Berger-Twerski Informed Choice Proposal, David E. Bernstein
Learning The Wrong Lessons From "An American Tragedy": A Critique Of The Berger-Twerski Informed Choice Proposal, David E. Bernstein
Michigan Law Review
Margaret Berger and Aaron Twerski are among the leading scholars in their respective fields of Evidence and Products Liability. I have benefited from their work on many occasions. Precisely because of the deserved respect and esteem in which Berger and Twerski are held-not to mention the prominence of their forum, the Michigan Law Review-their proposal to create a new "informed choice" cause of action in pharmaceutical litigation is likely to receive sympathetic attention. Because I believe that their proposal is ill-conceived and dangerous, I feel compelled (with some trepidation) to write this response. Berger and Twerski propose that courts recognize …
The Need For An Innocence Network In Texas., Matthew D. Sharp
The Need For An Innocence Network In Texas., Matthew D. Sharp
The Scholar: St. Mary's Law Review on Race and Social Justice
Texas must establish an innocence network to ensure crime lab accountability standards are enforced. The multitude of crime lab scandals around the United States demonstrate why the current system of accountability, self-policing, should be reimagined as one more similar to that of a manufacturer and a consumer. Like manufacturers, crime labs are in the best position to ensure the accuracy of any results. Reshaping the system of accountability in this way would ensure that those responsible for handling evidence, handle it with the utmost care and provide accurate results. Innocence Projects generally adhere to one of three different organizational paradigms. …
Daubert & Danger: The "Fit" Of Expert Predictions In Civil Commitments, Alex Scherr
Daubert & Danger: The "Fit" Of Expert Predictions In Civil Commitments, Alex Scherr
Scholarly Works
The opinions of experts in prediction in civil commitment hearings should help the courts, but over thirty years of commentary, judicial opinion, and scientific review argue that predictions of danger lack scientific rigor. The United States Supreme Court has commented regularly on the uncertainty of predictive science. The American Psychiatric Association has argued to the Court that "[t]he professional literature uniformly establishes that such predictions are fundamentally of very low reliability." Scientific studies indicate that some predictions do little better than chance or lay speculation, and even the best predictions leave substantial room for error about individual cases. The sharpest …
Daubert's Backwash: Litigation-Generated Science, William L. Anderson, Barry M. Parsons, Drummond Rennie
Daubert's Backwash: Litigation-Generated Science, William L. Anderson, Barry M. Parsons, Drummond Rennie
University of Michigan Journal of Law Reform
In the 1993 landmark case Daubert v. Merrell Dow Pharmaceuticals, the United States Supreme Court articulated its position on the admissibility of scientific evidence. The Court reasoned that federal judges should rely on the processes scientists use to identify unreliable research, including the process of peer review, to determine when scientific evidence should be inadmissible. In response, lawyers and their clients, seeking to rely on such evidence, have begun funding and publishing their own research with the primary intention of providing support to cases they are litigating. This Article examines the phenomenon of litigation-generated science, how it potentially undermines …
The Implications Of Kumho Tire: Applying Daubert Analysis To Warning-Label Testimony In Products Liability Cases, Sara K. Ledford
The Implications Of Kumho Tire: Applying Daubert Analysis To Warning-Label Testimony In Products Liability Cases, Sara K. Ledford
Indiana Law Journal
No abstract provided.
Conflicts Of Interest In Scientific Expert Testimony, Mark R. Patterson
Conflicts Of Interest In Scientific Expert Testimony, Mark R. Patterson
William & Mary Law Review
No abstract provided.
"Yer Outa Here!" A Framework For Analyzing The Potential Exclusion Of Expert Testimony Under The Federal Rules Of Evidence, Stephen D. Easton
"Yer Outa Here!" A Framework For Analyzing The Potential Exclusion Of Expert Testimony Under The Federal Rules Of Evidence, Stephen D. Easton
University of Richmond Law Review
It does not take long for even a casual observer of criminal and civil trials to make two observations about expert witnesses. The first of these observations comes almost immediately: experts are vitally important to the judicial process. In many trials, the outcome largely depends upon which set of impressively credentialed experts the jurors (and the judge) believe. The second observation generally comes later than the first: a significant amount of shoddy "science," phony logic, faulty analysis, sleight of hand, and other assorted junk enters the courtroom dressed up in the emperor's clothes of expert testimony.
The Use Of Facilitated Communication In Child Abuse Prosecutions, James Frederick Watson
The Use Of Facilitated Communication In Child Abuse Prosecutions, James Frederick Watson
University of Richmond Law Review
Before allowing a child who has alleged that he or she has been abused to testify at trial, a judge must be satisfied that the child is competent. In other words, the judge must find that the child has the ability to "observe, record, recollect and recount as well as an understanding of the duty to tell the truth." Determining whether children with certain developmental disorders are competent to testify has recently presented the courts with some difficult issues, as evidenced by a recent case in which the Supreme Court of Kansas upheld a conviction based primarily on the apparent …
The Assessment Of Expertise: Transcending Construction, Randolph N. Jonakait
The Assessment Of Expertise: Transcending Construction, Randolph N. Jonakait
Articles & Chapters
No abstract provided.
"Lies, Damned Lies, And Statistics"? Psychological Syndrome Evidence In The Courtroom After Daubert, Krista L. Duncan
"Lies, Damned Lies, And Statistics"? Psychological Syndrome Evidence In The Courtroom After Daubert, Krista L. Duncan
Indiana Law Journal
No abstract provided.
Daubert And The Quest For Value-Free "Scientific Knowledge" In The Courtroom, Alexander Morgan Capron
Daubert And The Quest For Value-Free "Scientific Knowledge" In The Courtroom, Alexander Morgan Capron
University of Richmond Law Review
In a world that grows more technologically complex every day and in which scientific research continually expands both our understanding of, and our questions about, the operation of the natural and man-made world, it is hardly surprising that science should show up with increasing frequency in our court-rooms. Science itself is sometimes at issue, for example, in proceedings on allegations of scientific misconduct or in disputes over the ownership or patentability of technologies. But more frequently, science enters in aid of resolving a case in which a complex question of causation is at issue. To establish or rebut causation, each …