Evidence Commons^™

Law, Fact, And Procedural Justice, G. Alexander Nunn

Faculty Scholarship

The distinction between questions of law and questions of fact is deceptively complex. Although any first-year law student could properly classify those issues that fall at the polar ends of the law-fact continuum, the Supreme Court has itself acknowledged that the exact dividing line between law and fact—the point where legal inquiries end and factual ones begin—is “slippery,” “elusive,” and “vexing.” But identifying that line is crucially important. Whether an issue is deemed a question of law or a question of fact often influences the appointment of a courtroom decision maker, the scope of appellate review, the administration of certain …

Can Speech Act Theory Save Notice Pleading?, Susan E. Provenzano

Indiana Law Journal

Countless scholars have debated—and lower courts have attempted to apply—the plausibility pleading regime that the Supreme Court introduced in Twombly and Iqbal. Iqbal took Twombly’s requirement that a complaint plead plausibly and turned it into a two-step test. Under that test, the life or death of a lawsuit rests on the distinction between “well-pleaded” and “conclusory” allegations. Only the former are assumed true on a motion to dismiss. Seven decades of pleading precedent had taken a sensible, if unstable, approach to the truth assumption, making a single cut between factual contentions (assumed true) and legal conclusions (ignored). But Iqbal redrew …

“More Than Tangential”: When Does The Public Have A Right To Access Judicial Records?, Jordan Elias

Journal of Law and Policy

 Public accountability requires open proceedings and access to documents filed with the courts. The strong policy favoring access to judicial records creates a presumption against sealing documents without a compelling reason.  The Ninth Circuit Court of Appeals recently held that this presumption of access arises when a proceeding relates “more than tangentially” to the merits. This is a low standard under which many types of motions qualify for the compelling reasons test.  With too much litigation occurring in secret, courts can use the “more than tangential” standard proactively to keep electronic case dockets available to citizens.

Servotronics, Inc. V. Rolls-Royce Plc And The Boeing Company: Brief Of Professor Yanbai Andrea Wang As Amicus Curiae In Support Of Neither Party, Yanbai Andrea Wang, Michael H. Mcginley

All Faculty Scholarship

Rather than expressing a view on the issues raised and ably briefed by the parties, amicus submits this brief to inform the Court of the scholarly research she has conducted regarding Section 1782 proceedings since this Court’s seminal decision in Intel. As Section 1782 applications have proliferated, the lower courts have struggled to apply the Intel factors as this Court had envisioned. Especially in the context of Section 1782 applications submitted by parties to an international proceeding (as opposed to those made by the international tribunal itself), lower courts have frequently found themselves unable to analyze and apply the …

The Attorney-Client Privilege And Former Employees, Douglas R. Richmond

Catholic University Law Review

Attorney-client relationships are infused with confidentiality, and the attorney-client privilege is critical to the protection of sensitive and important communications between clients and their lawyers. Organizational clients, like individuals, are entitled to assert the attorney-client privilege concerning communications that fall within its scope.

In the organizational context, a common problem is determining who among the entity’s employees speaks on its behalf, such that communications between the entity’s lawyers and those employees may be protected against discovery by the organization’s adversaries and other third parties. And, of course, as organizations experience the inevitable turnover in their workforces, another issue surfaces: when, …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents and Special Thanks.

Rock And Hard Place Arguments, Jareb Gleckel, Grace Brosofsky

Seattle University Law Review

This Article explores what we coin “rock and hard place” (RHP) arguments in the law, and it aims to motivate mission-driven plaintiffs to seek out such arguments in their cases. The RHP argument structure helps plaintiffs win cases even when the court views that outcome as unfavorable.

We begin by dissecting RHP dilemmas that have long existed in the American legal system. As Part I reveals, prosecutors and law enforcement officials have often taken advantage of RHP dilemmas and used them as a tool to persuade criminal defendants to forfeit their constitutional rights, confess, or give up the chance to …

Why Do The Poor Not Have A Constitutional Right To File Civil Claims In Court Under Their First Amendment Right To Petition The Government For A Redress Of Grievances?, Henry Rose

Seattle University Law Review

Since 1963, the United States Supreme Court has recognized a constitutional right for American groups, organizations, and persons to pursue civil litigation under the First Amendment right to petition the government for redress of grievances. However, in three cases involving poor plaintiffs decided by the Supreme Court in the early 1970s—Boddie v. Connecticut,2 United States v. Kras,3 and Ortwein v. Schwab4—the Supreme Court rejected arguments that all persons have a constitutional right to access courts to pursue their civil legal claims.5 In the latter two cases, Kras and Ortwein, the Supreme Court concluded that poor persons were properly barred from …

Neither Safe, Nor Legal, Nor Rare: The D.C. Circuit’S Use Of The Doctrine Of Ratification To Shield Agency Action From Appointments Clause Challenges, Damien M. Schiff

Seattle University Law Review

Key to the constitutional design of the federal government is the separation of powers. An important support for that separation is the Appointments Clause, which governs how officers of the United States are installed in their positions. Although the separation of powers generally, and the Appointments Clause specifically, support democratically accountable government, they also protect individual citizens against abusive government power. But without a judicial remedy, such protection is ineffectual—a mere parchment barrier.

Such has become the fate of the Appointments Clause in the D.C. Circuit, thanks to that court’s adoption—and zealous employment—of the rule that agency action, otherwise unconstitutional …

Power And Statistical Significance In Securities Fraud Litigation, Jill E. Fisch, Jonah B. Gelbach

All Faculty Scholarship

Event studies, a half-century-old approach to measuring the effect of events on stock prices, are now ubiquitous in securities fraud litigation. In determining whether the event study demonstrates a price effect, expert witnesses typically base their conclusion on whether the results are statistically significant at the 95% confidence level, a threshold that is drawn from the academic literature. As a positive matter, this represents a disconnect with legal standards of proof. As a normative matter, it may reduce enforcement of fraud claims because litigation event studies typically involve quite low statistical power even for large-scale frauds.

This paper, written for …

The Easterbrook Theorem: An Application To Digital Markets, Joshua D. Wright, Murat C. Mungan

Faculty Scholarship

The rise of large firms in the digital economy, including Amazon, Apple, Facebook, and Google, has rekindled the debate about monopolization law. There are proposals to make finding liability easier against alleged digital monopolists by relaxing substantive standards; to flip burdens of proof; and to overturn broad swaths of existing Supreme Court precedent, and even to condemn a law review article. Frank Easterbrook’s seminal 1984 article, The Limits of Antitrust, theorizes that Type I error costs are greater than Type II error costs in the antitrust context, a proposition that has been woven deeply into antitrust law by the Supreme …

Recollections Refreshed And Recorded, Leonard M. Niehoff

Articles

Witnesses forget stuff. When they do, the evidence rules give us two tools to help solve the problem. Lawyers call one "refreshed recollection" and the other "past recollection recorded," labels just similar enough to guarantee confusion. Nevertheless, these principles get at very different things and are well worth the effort necessary to distinguish and understand them.

So how do we get there?

Assertion And Hearsay, Richard Lloret

Dickinson Law Review (2017-Present)

This article explores the characteristics and functions of assertion and considers how the term influences the definition of hearsay under Federal Rule of Evidence 801. Rule 801(a) defines hearsay by limiting it to words and conduct intended as an assertion, but the rule does not define the term assertion. Courts and legal scholars have focused relatively little attention on the nature and definition of assertion. That is unfortunate, because assertion is a robust concept that has been the subject of intense philosophic study over recent decades. Assertion is not a mere cypher standing in for whatever speech or conduct one …