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Articles 1 - 30 of 74
Full-Text Articles in Evidence
Digital Habit Evidence, Andrew Guthrie Ferguson
Digital Habit Evidence, Andrew Guthrie Ferguson
Articles in Law Reviews & Other Academic Journals
This Article explores how “habit evidence” will become a catalyst for a new form of digital proof based on the explosive growth of smart homes, smart cars, smart devices, and the Internet of Things. Habit evidence is the rule that certain sorts of semiautomatic, regularized responses to particular stimuli are trustworthy and thus admissible under the Federal Rules of Evidence (“FRE”) 406 “Habit; Routine Practice” and state equivalents.
While well established since the common law, “habit” has made only an inconsistent appearance in reported cases and has been underutilized in trial practice. But intriguingly, once applied to the world of …
Stereotyping Evidence: The Civil Exception To The Federal Rape Shield Law And Its Embedded Sexual Stereotypes, Ramona Albin
Stereotyping Evidence: The Civil Exception To The Federal Rape Shield Law And Its Embedded Sexual Stereotypes, Ramona Albin
American University Journal of Gender, Social Policy & the Law
No abstract provided.
Liberty And Justice For All?: A Pathfinder On The Use Of Lyrics As Evidence In Civil And Criminal Trial, Stephanie Washington
Liberty And Justice For All?: A Pathfinder On The Use Of Lyrics As Evidence In Civil And Criminal Trial, Stephanie Washington
Upper Level Writing Requirement Research Papers
No abstract provided.
[Marked Confidential]: Negative Externalities Of Discovery Secrecy, Gustavo Ribeiro
[Marked Confidential]: Negative Externalities Of Discovery Secrecy, Gustavo Ribeiro
Articles in Law Reviews & Other Academic Journals
Current unprecedented levels of secrecy in civil discovery create significant negative externalities by preventing our adversary system from measuring up to the broad public goals that justify it. First, excessive discovery secrecy undermines the courts and the public’s ability to correct distortions of the truth-seeking function of the adversary system caused by excessive partisanship and confirmation bias. Second, it weakens the adversary system’s promotion of liberal democratic values, such as transparency and self-government. Third, it threatens the adversary system’s role in upholding human dignity, understood either as respect or status. To correct the negative externalities caused by excessive discovery secrecy, …
The Euclid Proviso, Ezra Rosser
The Euclid Proviso, Ezra Rosser
Articles in Law Reviews & Other Academic Journals
This Article argues that the Euclid Proviso, which allows regional concerns to trump local zoning when required by the general welfare, should play a larger role in zoning's second century. Traditional zoning operates to severely limit the construction of additional housing. This locks in the advantages of homeowners but at tremendous cost, primarily in the form of unaffordable housing, to those who would like to join the community. State preemption of local zoning defies traditional categorization; it is at once both radically destabilizing and market-responsive. But, given the ways in which zoning is a foundational part of the racial and …
A Break From Reality: Modernizing Authentication Standards For Digital Video Evidence In The Era Of Deepfakes, John P. Lamonaga
A Break From Reality: Modernizing Authentication Standards For Digital Video Evidence In The Era Of Deepfakes, John P. Lamonaga
American University Law Review
The legal standard for authenticating photographic and video evidence in court has remained largely static throughout the evolution of media technology in the twentieth century. The advent of “deepfakes,” or fake videos created using artificial intelligence programming, renders outdated many of the assumptions that the Federal Rules of Evidence are built upon.
Rule 901(b)(1) provides a means to authenticate evidence through the testimony of a “witness with knowledge.” Courts commonly admit photographic and video evidence by using the “fair and accurate portrayal” standard to meet this Rule’s intent. This standard sets an extremely low bar—the witness need only testify that …
Sexual Contact Between A Suspect And Police Officers: How Far Should Police Go To Prove Prostitution?, Paula Del Valle Torres
Sexual Contact Between A Suspect And Police Officers: How Far Should Police Go To Prove Prostitution?, Paula Del Valle Torres
American University Journal of Gender, Social Policy & the Law
No abstract provided.
The Decline And Fall Of Circumstantial Evidence In Antitrust Law, Christopher R. Leslie
The Decline And Fall Of Circumstantial Evidence In Antitrust Law, Christopher R. Leslie
American University Law Review
No abstract provided.
International Arbitration And Attorney-Client Privilege — A Conflict Of Laws Approach, Susan Franck
International Arbitration And Attorney-Client Privilege — A Conflict Of Laws Approach, Susan Franck
Articles in Law Reviews & Other Academic Journals
Privilege determinations in international arbitration are currently the equivalent of the “wild west,” with minimal predictability and massive pockets of tribunal discretion. Yet protecting privilege in international arbitration — when the same document or communications with lawyers that is protected by United States law may receive no protection under another law — is fundamental to safeguarding attorney-client relationships within a global environment, incentivizing procedural integrity of dispute resolution, and ensuring that justice is done. As it is not clear what law applies to privilege and client confidentiality (let alone how the law is determine), this Essay begins to bridge the …
Immigration Unilateralism And American Ethnonationalism, Robert Tsai
Immigration Unilateralism And American Ethnonationalism, Robert Tsai
Articles in Law Reviews & Other Academic Journals
This paper arose from an invited symposium on "Democracy in America: The Promise and the Perils," held at Loyola University Chicago School of Law in Spring 2019. The essay places the Trump administration’s immigration and refugee policy in the context of a resurgent ethnonationalist movement in America as well as the constitutional politics of the past. In particular, it argues that Trumpism’s suspicion of foreigners who are Hispanic or Muslim, its move toward indefinite detention and separation of families, and its disdain for so-called “chain migration” are best understood as part of an assault on the political settlement of the …
The Bb Gun: A Harmless Toy Or Deadly Weapon? Practical Guidance For Objective Fact Finding In A Criminal Case, Steven N. Gosney, John Zak
The Bb Gun: A Harmless Toy Or Deadly Weapon? Practical Guidance For Objective Fact Finding In A Criminal Case, Steven N. Gosney, John Zak
Criminal Law Practitioner
No abstract provided.
Privacy And Security Across Borders, Jennifer Daskal
Privacy And Security Across Borders, Jennifer Daskal
Articles in Law Reviews & Other Academic Journals
Three recent initiatives -by the United States, European Union, and Australiaare opening salvos in what will likely be an ongoing and critically important debate about law enforcement access to data, the jurisdictional limits to such access, and the rules that apply. Each of these developments addresses a common set of challenges posed by the increased digitalization of information, the rising power of private companies delimiting access to that information, and the cross-border nature of investigations that involve digital evidence. And each has profound implications for privacy, security, and the possibility of meaningful democratic accountability and control. This Essay analyzes the …
Clearly Unconvincing: How Heightened Evidentiary Standards In Judicial Bypass Hearings Create An Undue Burden Under Whole Woman's Health, Haley Hawkins
American University Law Review
No abstract provided.
2017 Symposium Discussion: The Life Of An Immigration Attorney, Cori Alonso-Yoder
2017 Symposium Discussion: The Life Of An Immigration Attorney, Cori Alonso-Yoder
Articles in Law Reviews & Other Academic Journals
No abstract provided.
Microsoft Ireland, The Cloud Act, And International Lawmaking 2.0, Jennifer Daskal
Microsoft Ireland, The Cloud Act, And International Lawmaking 2.0, Jennifer Daskal
Articles in Law Reviews & Other Academic Journals
On March 23, President Trump signed the CLOUD Act, 1 thereby mooting one of the most closely watched Supreme Court cases this term: the Microsoft Ireland case. 2 This essay examines these extraordinary and fast-moving developments, explaining how the Act resolves the Supreme Court case and addresses the complicated questions of jurisdiction over data in the cloud. The developments represent a classic case of international lawmaking via domestic regulation, as mediated by major multinational corporations that manage so much of the world's data.
User-Generated Evidence, Rebecca Hamilton
User-Generated Evidence, Rebecca Hamilton
Articles in Law Reviews & Other Academic Journals
Around the world, people are using their smartphones to document atrocities. This Article is the first to address the implications of this important development for international criminal law. While acknowledging the potential benefits such user-generated evidence could have for international criminal investigations, the Article identifies three categories of concern related to its use: (i) user security; (ii) evidentiary bias; and (iii) fair trial rights. In the absence of safeguards, user-generated evidence may address current problems in international criminal justice at the cost of creating new ones and shifting existing problems from traditional actors, who have institutional backing, to individual users …
Blog: Without Rhyme Or Reason, Meikhel M. Philogene
Blog: Without Rhyme Or Reason, Meikhel M. Philogene
The Modern American
No abstract provided.
Notice And Standing In The Fourth Amendment: Searches Of Personal Data, Jennifer Daskal
Notice And Standing In The Fourth Amendment: Searches Of Personal Data, Jennifer Daskal
Articles in Law Reviews & Other Academic Journals
In at least two recent cases, courts have rejected service providers' capacity to raise Fourth Amendment claims on behalf of their customers. These holdings rely on longstanding Supreme Court doctrine establishing a general rule against third parties asserting the Fourth Amendment rights of others. However, there is a key difference between these two recent cases and those cases on which the doctrine rests. The relevant Supreme Court doctrine stems from situations in which someone could take action to raise the Fourth Amendment claim, even if the particular thirdparty litigant could not. In the situations presented by the recent cases, by …
Is Courtesy No Longer Contagious, David Spratt
Is Courtesy No Longer Contagious, David Spratt
Articles in Law Reviews & Other Academic Journals
No abstract provided.
International Arbitration: Demographics, Precision And Justice, Susan Franck, James Freda, Kellen Lavin, Tobias A. Lehmann, Anne Van Aaken
International Arbitration: Demographics, Precision And Justice, Susan Franck, James Freda, Kellen Lavin, Tobias A. Lehmann, Anne Van Aaken
Contributions to Books
ICCA Congress Series No. 18 comprises the proceedings of the twenty-second Congress of the International Council for Commercial Arbitration (ICCA), held in Miami in 2014. The articles by leading arbitration practitioners and scholars from around the world address the challenges, both perceived and real, to the legitimacy of international arbitration.
The volume focusses on the twin pillars of legitimacy: justice, in procedure and outcome, and precision at every phase of the proceedings. Contributions on justice explore issues related to diversity, fairness and whether arbitral institutions can do more to foster legitimacy – based on the responses of nine international arbitral …
Visualizing Dna Proof, Nicholas L. Georgakopoulos
Visualizing Dna Proof, Nicholas L. Georgakopoulos
Criminal Law Practitioner
No abstract provided.
Unspringing The Witness Memory And Demeanor Trap: What Every Judge And Juror Needs To Know About Cognitive Psychology And Witness Credibility, Mark W. Bennett
Unspringing The Witness Memory And Demeanor Trap: What Every Judge And Juror Needs To Know About Cognitive Psychology And Witness Credibility, Mark W. Bennett
American University Law Review
The soul of America's civil and criminal justice systems is the ability of jurors and judges to accurately determine the facts of a dispute. This invariably implicates the credibility of witnesses. In making credibility determinations, jurors and judges necessarily decide the accuracy of witnesses' memories and the effect of the witnesses' demeanor on their credibility. Almost all jurisdictions' pattern jury instructions about witness credibility explain nothing about how a witness's memories for events and conversations work-and how startlingly fallible memories actually are. They simply instruct the jurors to consider the witness's "memory" with no additional guidance. Similarly, the same pattern …
Panel 3: Chronic Pain, Psychogenic Pain, And Emotion, Robert Dinerstein
Panel 3: Chronic Pain, Psychogenic Pain, And Emotion, Robert Dinerstein
Articles in Law Reviews & Other Academic Journals
No abstract provided.
Negotiator's Nook: The Ins And Outs Of Effective Negotiation, David Spratt
Negotiator's Nook: The Ins And Outs Of Effective Negotiation, David Spratt
Articles in Law Reviews & Other Academic Journals
No abstract provided.
Trial By Google: Judicial Notice In The Information Age, Andrew Ferguson
Trial By Google: Judicial Notice In The Information Age, Andrew Ferguson
Articles in Law Reviews & Other Academic Journals
This Article presents a theory of judicial notice for the information age. It argues that the ease of accessing factual data on the Internet allows judges and litigants to expand the use of judicial notice in ways that raise significant concerns about admissibility, reliability, and fair process. State and federal courts are already applying the surprisingly pliant judicial notice rules to bring websites ranging from Google Maps to Wikipedia into the courtroom, and these decisions will only increase in frequency in coming years. This rapidly emerging judicial phenomenon is notable for its ad hoc and conclusory nature – attributes that …
Exploring The Prejudicial Effect Of Gang Evidence: Under What Conditions Will Jurors Ignore Reasonable Doubt, Mitchell L. Eisen, Brenna M. Dotson
Exploring The Prejudicial Effect Of Gang Evidence: Under What Conditions Will Jurors Ignore Reasonable Doubt, Mitchell L. Eisen, Brenna M. Dotson
Criminal Law Practitioner
No abstract provided.
On Professionalism, Civility, & Discovery, Kathryn Todryk
On Professionalism, Civility, & Discovery, Kathryn Todryk
Criminal Law Practitioner
No abstract provided.
On Demonstrative Evidence And Trial Graphics: What Works And What Doesn't, Ryan Flax
On Demonstrative Evidence And Trial Graphics: What Works And What Doesn't, Ryan Flax
Criminal Law Practitioner
No abstract provided.
The 'Rhyme Or Reason' Behind Prosecutorial Use Of Rape Lyrics As Evidence In Criminal Trials, Robery Nothdurft Jr
The 'Rhyme Or Reason' Behind Prosecutorial Use Of Rape Lyrics As Evidence In Criminal Trials, Robery Nothdurft Jr
Criminal Law Practitioner
No abstract provided.
Modernizing Jury Instructions In The Age Of Social Media, David Aaronson, Sydney Patterson
Modernizing Jury Instructions In The Age Of Social Media, David Aaronson, Sydney Patterson
Articles in Law Reviews & Other Academic Journals
No abstract provided.