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Articles 1 - 19 of 19
Full-Text Articles in Judges
Bending The Rules Of Evidence, Edward K. Cheng, G. Alexander Nunn, Julia Simon-Kerr
Bending The Rules Of Evidence, Edward K. Cheng, G. Alexander Nunn, Julia Simon-Kerr
Faculty Scholarship
The evidence rules have well-established, standard textual meanings—meanings that evidence professors teach their law students every year. Yet, despite the rules’ clarity, courts misapply them across a wide array of cases: Judges allow past acts to bypass the propensity prohibition, squeeze hearsay into facially inapplicable exceptions, and poke holes in supposedly ironclad privileges. And that’s just the beginning.
The evidence literature sees these misapplications as mistakes by inept trial judges. This Article takes a very different view. These “mistakes” are often not mistakes at all, but rather instances in which courts are intentionally bending the rules of evidence. Codified evidentiary …
Rwu Law News: The Newsletter Of Roger Williams University School Of Law 04-2021, Michael M. Bowden, Barry Bridges, Political Roundtable
Rwu Law News: The Newsletter Of Roger Williams University School Of Law 04-2021, Michael M. Bowden, Barry Bridges, Political Roundtable
Life of the Law School (1993- )
No abstract provided.
Opting Out Of Discovery, Jay Tidmarsh
Opting Out Of Discovery, Jay Tidmarsh
Journal Articles
This Article proposes a system in which both parties are provided an opportunity to opt out of discovery. A party who opts out is immunized from dispositive motions, including a motion to dismiss for failure to state a claim or a motion for summary judgment. If neither party opts out of discovery, the parties waive jury-trial rights, thus giving judges the ability to use stronger case-management powers to focus the issues and narrow discovery. If one party opts out of discovery but an opponent does not, the cost of discovery shifts to the opponent. This Article justifies this proposal in …
Rwu First Amendment Blog: David Logan's Blog: Donald Trump And The Full-Employment-For-Lawyers Presidency, David A. Logan
Rwu First Amendment Blog: David Logan's Blog: Donald Trump And The Full-Employment-For-Lawyers Presidency, David A. Logan
Law School Blogs
No abstract provided.
From Simple Statements To Heartbreaking Photographs And Videos: An Interdisciplinary Examination Of Victim Impact Evidence In Criminal Cases, Mitchell J. Frank
From Simple Statements To Heartbreaking Photographs And Videos: An Interdisciplinary Examination Of Victim Impact Evidence In Criminal Cases, Mitchell J. Frank
Faculty Scholarship
No abstract provided.
Decision Making And The Law: Truth Barriers, Jonathan J. Koehler, John B. Meixner Jr.
Decision Making And The Law: Truth Barriers, Jonathan J. Koehler, John B. Meixner Jr.
Scholarly Works
Reaching an accurate outcome is a central goal of the American trial. But structural features of the legal system, in combination with the cognitive shortcomings of legal actors, hinder the search for truth. Regarding the legal system, various rules and policies restrict decision makers’ access to evidence, violate the laws of probability, and limit the evidentiary concerns that may be considered on appeal. Regarding legal actors, informational deficits (particularly regarding scientific and statistical evidence) and cognitive biases of police investigators, witnesses (lay and expert), attorneys, judges, and jurors pose serious obstacles. We conclude by suggesting that research in judgment and …
Analogical Legal Reasoning: Theory And Evidence, Joshua C. Teitelbaum
Analogical Legal Reasoning: Theory And Evidence, Joshua C. Teitelbaum
Georgetown Law Faculty Publications and Other Works
The paper offers a formal model of analogical legal reasoning and takes the model to data. Under the model, the outcome of a new case is a weighted average of the outcomes of prior cases. The weights capture precedential influence and depend on fact similarity (distance in fact space) and precedential authority (position in the judicial hierarchy). The empirical analysis suggests that the model is a plausible model for the time series of U.S. maritime salvage cases. Moreover, the results evince that prior cases decided by inferior courts have less influence than prior cases decided by superior courts.
Avoiding Adversarial Adjudication, Michael T. Morley
Avoiding Adversarial Adjudication, Michael T. Morley
Scholarly Publications
There are a variety of procedural vehicles through which litigants may seek a substantive court ruling or order that declares or modifies their legal rights and obligations without actually litigating the merits of a case as a whole or particular issues within the case. These alternatives include defaults, failures to oppose motions for summary judgment, waivers and forfeitures, stipulations of law, confessions of error, and consent decrees. Courts presently apply different standards in determining whether to accept or allow litigants to take advantage of each of these vehicles for avoiding adversarial adjudication. Because all of these procedural alternatives share the …
Hearings, Mark Spottswood
Hearings, Mark Spottswood
Faculty Working Papers
This article explores a constantly recurring procedural question: When is fact-finding improved by a live hearing, and when would it be better to rely on a written record? Unfortunately, when judges, lawyers, and rulemakers consider this issue, they are led astray by the widely shared—but false—assumption that a judge can best determine issues of credibility by viewing the demeanor of witnesses while they are testifying. In fact, a large body of scientific evidence indicates that judges are more likely to be deceived by lying or mistaken witnesses when observing their testimony in person than if the judges were to review …
Cross-Examining Film, Jessica Silbey
Cross-Examining Film, Jessica Silbey
Faculty Scholarship
The Supreme Court decision in Scott v. Harris holds that a Georgia police officer did not violate a fleeing suspect's Fourth Amendment rights when he caused the suspect's car to crash. The court's decision relies almost entirely on the filmed version of the high-speed police chase taken from a "dash-cam," a video camera mounted on the dashboard of the pursuing police cruiser. The Supreme Court said that in light of the contrary stories told by the opposing parties to the lawsuit, the only story to be believed was that told by the video. In Scott v. Harris, the court fell …
Evidentiary Wisdom And Blinders In Perspective: Thoughts On Misjudging, Elaine W. Shoben
Evidentiary Wisdom And Blinders In Perspective: Thoughts On Misjudging, Elaine W. Shoben
Scholarly Works
Empirical studies serve to enlighten the law, even when they simply confirm the wisdom of existing rules. Chris Guthrie's article, Misjudging, primarily serves that useful function—confirming the wisdom of existing rules—even though the author sought to establish something different. Guthrie's article applies insights from cognitive psychology to the resolution of legal disputes and presents some empirical proof of the effect of the application. He concludes that three sets of “blinders”—informational, cognitive, and attitudinal—affect the ability of judges to reach correct resolutions of disputes. He therefore recommends further appreciation of the ability of arbitration and mediation to avoid some of the …
How Earl Warren's Twenty-Two Years In Law Enforcement Affected His Work As Chief Justice, Yale Kamisar
How Earl Warren's Twenty-Two Years In Law Enforcement Affected His Work As Chief Justice, Yale Kamisar
Articles
Before becoming governor of California, Earl Warren had spent his entire legal career, twenty-two years, in law enforcement. Professor Kamisar maintains that this experience significantly influenced Warren's work as a Supreme Court justice and gave him a unique perspective into police interrogation and other police practices. This article discusses some of Warren's experiences in law enforcement and searches for evidence of that experience in Warren's opinions. For example, when Warren was head of the Alameda County District Attorney's Office, he and his deputies not only relied on confessions in many homicide cases but also themselves interrogated homicide suspects. The seeds …
Judges As Film Critics: New Approaches To Filmic Evidence, Jessica Silbey
Judges As Film Critics: New Approaches To Filmic Evidence, Jessica Silbey
Faculty Scholarship
This Article exposes internal contradictions in case law deciding the use and admissibility of film as evidence. Based on a review of more than ninety state and federal cases dating from 1923 to the present, the Article explains how the source of these contradictions is the frequent miscategorization of film as "demonstrative evidence," that category of evidence that purports to illustrate other evidence rather than to be directly probative of some fact at issue. The Article further demonstrates how these contradictions are based on two venerable jurisprudential anxieties. One is the concern about the growing trend toward replacing the traditional …
Valuation Averaging: A New Procedure For Resolving Valuation Disputes, Keith Sharfman
Valuation Averaging: A New Procedure For Resolving Valuation Disputes, Keith Sharfman
Rutgers Law School (Newark) Faculty Papers
In this Article, Professor Sharfman addresses the problem of "discretionary valuation": that courts resolve valuation disputes arbitrarily and unpredictably, thus harming litigants and society. As a solution, he proposes the enactment of "valuation averaging," a new procedure for resolving valuation disputes modeled on the algorithmic valuation processes often agreed to by sophisticated private firms in advance of any dispute. He argues that by replacing the discretion of judges and juries with a mechanical valuation process, valuation averaging would cause litigants to introduce more plausible and conciliatory valuations into evidence and thereby reduce the cost of valuation litigation and increase the …
Judicial Comments On Pending Cases: The Ethical Restrictions And The Sanctions – A Case Study Of The Microsoft Litigation, Ronald D. Rotunda
Judicial Comments On Pending Cases: The Ethical Restrictions And The Sanctions – A Case Study Of The Microsoft Litigation, Ronald D. Rotunda
Law Faculty Articles and Research
No abstract provided.
Discovering Who We Are: An English Perspective On The Simpson Trial, William T. Pizzi
Discovering Who We Are: An English Perspective On The Simpson Trial, William T. Pizzi
Publications
No abstract provided.
On The 'Fruits' Of Miranda Violations, Coerced Confessions, And Compelled Testimony, Yale Kamisar
On The 'Fruits' Of Miranda Violations, Coerced Confessions, And Compelled Testimony, Yale Kamisar
Articles
Professor Akhil Reed Amar and Ms. Renee B. Lettow have written a lively, provocative article that will keep many of us who teach constitutional-criminal procedure busy for years to come. They present a reconception of the "first principles" of the Fifth Amendment, and they suggest a dramatic reconstruction of criminal procedure. As a part of that reconstruction, they propose, inter alia, that at a pretrial hearing presided over by a judicial officer, the government should be empowered to compel a suspect, under penalty of contempt, to provide links in the chain of evidence needed to convict him.
Grammarians At The Gate: The Rehnquist Court's Evolving Plain Meaning Approach To Bankruptcy Jurisprudence, Walter Effross
Grammarians At The Gate: The Rehnquist Court's Evolving Plain Meaning Approach To Bankruptcy Jurisprudence, Walter Effross
Articles in Law Reviews & Other Academic Journals
No abstract provided.
Has The Court Left The Attorney General Behind? The Bazelon-Katzenbach Letters On Poverty, Equality, And The Administration Of Criminal Justice, Yale Kamisar
Articles
Distribution of the first preliminary draft of the proposed American Law Institute Model Code of Pre-Arraignment Procedure last June touched off a brisk exchange of letters between Chief Judge David Bazelon of the United States Court of Appeals for the District of Columbia Circuit, who maintained that the proposed code left a good deal to be desired, and Attorney General Nicholas deB. Katzenbach, who, although he did not explicitly treat any provision of the preliminary draft, sharply challenged the conception of equality underlying Bazelon's criticism of it. By now, both the code, and the Bazelon-Katzenbach correspondence which it evoked, are …