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Articles 1 - 7 of 7
Full-Text Articles in Evidence
Race Ethics: Colorblind Formalism And Color-Coded Pragmatism In Lawyer Regulation, Anthony V. Alfieri
Race Ethics: Colorblind Formalism And Color-Coded Pragmatism In Lawyer Regulation, Anthony V. Alfieri
Articles
The recent, high-profile civil and criminal trials held in the aftermath of the George Floyd and Ahmaud Arbery murders, the Kyle Rittenhouse killings, and the Charlottesville "Unite the Right" Rally violence renew debate over race, representation, and ethics in the U.S. civil and criminal justice systems. For civil rights lawyers, prosecutors, and criminal defense attorneys, neither the progress of post-war civil rights movements and criminal justice reform campaigns nor the advance of Critical Race Theory and social movement scholarship have resolved the debate over the use of race in pretrial, trial, and appellate advocacy, and in the lawyering process more …
The Executive Branch Anticanon, Deborah Pearlstein
The Executive Branch Anticanon, Deborah Pearlstein
Articles
Donald Trump’s presidency has given rise to a raft of concerns not just about the wisdom of particular policy decisions but also about the prospect that executive actions might have troubling longer term “precedential” effects. While critics tend to leave undefined what “precedent” in this context means, existing constitutional structures provide multiple mechanisms by which presidential practice can influence future executive branch conduct: judicial actors rely on practice as gloss on constitutional meaning, executive branch officials rely on past practice in guiding institutional norms of behavior, and elected officials outside the executive branch and the people themselves draw on past …
The Mold That Shapes Hearsay Law, Richard D. Friedman
The Mold That Shapes Hearsay Law, Richard D. Friedman
Articles
In response to an article previously published in the Florida Law Review by Professor Ben Trachtenberg, I argue that the historical thesis of Crawford v. Washington is basically correct: The Confrontation Clause of the Sixth Amendment reflects a principle about how witnesses should give testimony, and it does not create any broader constraint on the use of hearsay. I argue that this is an appropriate limit on the Clause, and that in fact for the most part there is no good reason to exclude nontestimonial hearsay if live testimony by the declarant to the same proposition would be admissible. I …
The Embedded Epistemologist: Dispatches From The Legal Front, Susan Haack
The Embedded Epistemologist: Dispatches From The Legal Front, Susan Haack
Articles
In ordinary circumstances, we can assess the worth of evidence well enough without benefit of any theory; but when evidence is especially complex, ambiguous, or emotionally disturbing-as it often is in legal contexts-epistemological theory may be helpful. A legal fact-finder is asked to determine whether the proposition that the defendant is guilty, or is liable, is established to the required degree of proof by the [admissible] evidence presented; i.e., to make an epistemological appraisal. The foundherentist theory developed in Evidence and Inquiry can help us understand what this means; and reveals that degrees of proof cannot be construed as mathematical …
Federal Philosophy Of Science: A Deconstruction- And A Reconstruction, Susan Haack
Federal Philosophy Of Science: A Deconstruction- And A Reconstruction, Susan Haack
Articles
No abstract provided.
The Priest-Penitent Privilege – An Hibernocentric Exercise In Postcolonial Jurisprudence, Walter J. Walsh
The Priest-Penitent Privilege – An Hibernocentric Exercise In Postcolonial Jurisprudence, Walter J. Walsh
Articles
Although much has been written on the history of the priest-penitent privilege, this Article will show that such writing tends toward an unconscious, but strong, anglocentric tilt. It seems that no scholar has tried to locate and interpret all the Irish and American sources that inspired this initially hibernocentric, later more generally American, postcolonial deviation from the English common law. Since the Second World War, the significance of Philips and its 1828 New York codification have gained widespread recognition, but the scholarly inquiry has never advanced in any truly historical fashion. This article is thus the first history of the …
The Confrontation Clause Re-Rooted And Transformed, Richard D. Friedman
The Confrontation Clause Re-Rooted And Transformed, Richard D. Friedman
Articles
For several centuries, prosecution witnesses in criminal cases have given their testimony under oath, face to face with the accused, and subject to cross-examination at trial. The Confrontation Clause of the Sixth Amendment to the U.S. Constitution guarantees the procedure, providing that ‘‘[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witness against him.’’ In recent decades, however, judicial protection of the right has been lax, because the U.S. Supreme Court has tolerated admission of outof- court statements against the accused, without cross-examination, if the statements are deemed ‘‘reliable’’ or ‘‘trustworthy.’’ …