Jurisprudence Commons^™

Admissibility Of Scientific Evidence Under Daubert: The Fatal Flaws Of ‘Falsifiability’ And ‘Falsification’, Barbara P. Billauer Esq

barbara p billauer esq

Abstract: The Daubert mantra demands that judges, acting as gatekeepers, prevent para, pseudo or ‘bad’ science from infiltrating the courtroom. To do so, the Judges must first determine what “science” is? And then, what ‘good science’ is? It is submitted that Daubert is seriously polluted with the notions of Karl Popper who sets ‘falsifiability’ and ‘falsification’ as the demarcation line for that determination. This inapt philosophy has intractably infected case law, leading to bad decisions immortalized as stare decisis. Among other problems, is the intolerance of Popper’s system for multiple causation, a key component of toxic- torts. Thus, the primary …

Gandhi’S Prophecy: Corporate Violence And A Mindful Law For Bhopal, Nehal A. Patel

Nehal A. Patel

AbstractOver thirty years have passed since the Bhopal chemical disaster began,and in that time scholars of corporate social responsibility (CSR) havediscussed and debated several frameworks for improving corporate responseto social and environmental problems. However, CSR discourse rarelydelves into the fundamental architecture of legal thought that oftenbuttresses corporate dominance in the global economy. Moreover, CSRdiscourse does little to challenge the ontological and epistemologicalassumptions that form the foundation for modern economics and the role ofcorporations in the world.I explore methods of transforming CSR by employing the thought ofMohandas Gandhi. I pay particular attention to Gandhi’s critique ofindustrialization and principle of swadeshi (self-sufficiency) …

Using Common Sense: A Linguistic Perspective On Judicial Interpretations Of "Use A Firearm", Clark D. Cunningham, Charles J. Filmore

Clark D. Cunningham

No abstract provided.

Temporary Insanity: The Strange Life And Times Of The Perfect Defense, Russell D. Covey

Russell D. Covey

The temporary insanity defense has a prominent place in the mythology of criminal law. Because it seems to permit factually guilty defendants to escape both punishment and institutionalization, some imagine it as the “perfect defense.” In fact, the defense has been invoked in a dizzying variety of contexts and, at times, has proven highly successful. Successful or not, the temporary insanity defense has always been accompanied by a storm of controversy, in part because it is often most successful in cases where the defendant’s basic claim is that honor, revenge, or tragic circumstance – not mental illness in its more …

Rules, Standards, Sentencing, And The Nature Of Law, Russell D. Covey

Russell D. Covey

Sentencing law and practice in the United States can be characterized as an argument about rules and standards. Whereas in the decades prior to the 1980s when sentencing was largely a discretionary activity governed only by broad sentencing standards, a sentencing reform movement in the 1980s transformed sentencing practice through the advent of sentencing guidelines and mandatory minimum provisions. As a result, sentencing became far less standard-like and far more rule-like. Although reform proponents believed that this "rulification" of sentencing would reduce unwarranted sentencing disparities and enhance justice, it is far from clear that these goals were achieved. Indeed, the …

Declining Controversial Cases: How Marriage Equality Changed The Paradigm, Elena Baylis

Articles

Until recently, state attorneys general defended their states’ laws as a matter of course. However, one attorney general’s decision not to defend his state’s law in a prominent marriage equality case sparked a cascade of attorney general declinations in other marriage equality cases. Declinations have also increased across a range of states and with respect to several other contentious subjects, including abortion and gun control. This Essay evaluates the causes and implications of this recent trend of state attorneys general abstaining from defending controversial laws on the grounds that those laws are unconstitutional, focusing on the marriage equality cases as …

Florida's "Brave New World": The Transition From Frye To Daubert Will Transform The Playing-Field For Litigants In Medical Causation Cases, Erica W. Rutner, Lara B. Bach

Barry Law Review

No abstract provided.

Dismissing Provenance: The Use Of Procedural Defenses To Bar Claims In Nazi-Looted Art And Securitized Mortgage Litigation, Christian J. Bromley

Christian J Bromley

The litigation surrounding an estimated 650,000 works looted by the Nazis in the Second World War and the millions of securitized mortgages foreclosed in the wake of the Great Recession converge on a fundamental legal principle: who really holds rightful title? Seemingly worlds apart, these separate yet remarkably similar forms of property challenge the American judiciary to allocate property rights between adversaries steadfast in their contention of rightful ownership. The legal fulcrum in this allocation often rests not on the equity or righteousness of either parties’ claim—whether museum versus heir or bank versus former homeowner—but instead on procedural defenses that …

Patent Claim Construction: A Modern Synthesis And Structured Framework, Peter S. Menell, Matthew D. Powers, Steven C. Carlson

Peter Menell

No abstract provided.

Response To Professor Parness And Mr. Reagle, Jack Grant Day

Akron Law Review

I subscribe to so much of the reform suggestions proposed by the authors that I believe my response can be most useful if confined to some emphasis or expansion of concurrent views, specific reference to disagreements and support for points of reform needed but not recommended.

203 N. Lasalle Five Years Later: Answers To The Open Questions, 38 J. Marshall L. Rev. 61 (2004), Paul B. Lewis

Paul Lewis

No abstract provided.

The High Price Of Poverty: A Study Of How The Majority Of Current Court System Procedures For Collecting Court Costs And Fees, As Well As Fines, Have Failed To Adhere To Established Precedent And The Constitutional Guarantees They Advocate., Trevor J. Calligan

Trevor J Calligan

No abstract provided.

Nonbank Banks: A Bank Is Always A Bank Unless Of Course It Is A Nonbank Bank: Board Of Governors V. Dimension Financial Corporation, Joseph Reece

Akron Law Review

Board of Governors v. Dimension Financial Corporation is of major significance because it is the first Supreme Court case addressing the issue of whether "nonbank banks" should be regulated under the Bank Holding Company Act of 1956 (BHCA). In rendering the Dimension Financial decision, the Supreme Court may have taken a major step in diffusing the controversy between financial institutions, the Federal Reserve Board, and Congress by determining when a bank is a "bank" for purposes of regulation under the BHCA.

In analyzing the issue before it, the Dimension Court reviewed applicable statutes, relevant case law, and legislative history and …

Bad News: Privacy Ruling To Increase Press Litigation, The Florida Star V. B.J.F., Mary Ellen Hockwalt

Akron Law Review

This note analyzes the history and precedent upon which the Court relied in reaching Florida Star's "harsh outcome." Next, the note discusses how the Court, by refusing to extend its holding beyond the facts of the case and give broad Constitutional protection to publications of truth, failed to provide lower courts with any guidance in deciding future invasion of privacy actions. Finally, the note examines the Court's balancing test: weighing the privacy interests of a crime victim against the newspaper's freedom to print truthful information.

The Constutionality Of Punitive Damages: Pacific Mutual Life Insurance Company V. Cleopatra Haslip, Thomas P. Mannion

Akron Law Review

This Note examines the history of the constitutional challenges to the doctrine of punitive damages. Next, this Note explores the Supreme Court's decision in Haslip. Finally, this Note examines the ramifications of the Haslip decision.

Scott V. Harris And The Future Of Summary Judgment, Tobias Barrington Wolff

All Faculty Scholarship

The Supreme Court’s decision in Scott v. Harris has quickly become a staple in many Civil Procedure courses, and small wonder. The cinematic high-speed car chase complete with dash-cam video and the Court’s controversial treatment of that video evidence seem tailor-made for classroom discussion. As is often true with instant classics, however, splashy first impressions can mask a more complex state of affairs. At the heart of Scott v. Harris lies the potential for a radical doctrinal reformation: a shift in the core summary judgment standard undertaken to justify a massive expansion of interlocutory appellate jurisdiction in qualified immunity cases. …

Nailing Down The Deadlines: A Modified Peremption Scheme For Claims Against Design Professionals, Alex T. Robertson

Alex T Robertson

In Louisiana construction cases, the timeliness of a third party claim for indemnity is contingent on both the profession of the defendant and where the plaintiff files the suit.[1] This moving target effect has roots in Louisiana’s adoption of a single peremptive statute for construction cases in lieu of the previously controlling liberative prescription statutes.[2] Louisiana instituted peremption to create a shorter and fixed period of time for the possibility of a design professional to be sued from a design, which has several positive consequences--judicial efficiency, higher quality of evidence in construction cases, positive economic impact and heightened creativity in …

Coming Off The Bench: Legal And Policy Implications Of Proposals To Allow Retired Justices To Sit By Designation On The Supreme Court, Lisa T. Mcelroy, Michael C. Dorf

Michael C. Dorf

In the fall of 2010, Senator Patrick Leahy introduced a bill that would have overridden a New Deal-era federal statute forbidding retired Justices from serving by designation on the Supreme Court of the United States. The Leahy bill would have authorized the Court to recall willing retired Justices to substitute for recused Justices. This Article uses the Leahy bill as a springboard for considering a number of important constitutional and policy questions, including whether the possibility of 4-4 splits justifies the substitution of a retired Justice for an active one; whether permitting retired Justices to substitute for recused Justices would …

A Government Of Laws Not Of Precedents 1776-1876: The Google Challenge To Common Law Myth, James Maxeiner

James R Maxeiner

Conventional wisdom holds that the United States is a common law country of precedents where, until the 20th century (the “Age of Statutes”), statutes had little role. Digitization by Google and others of previously hard to find legal works of the 19th century challenges this common law myth. At the Centennial in 1876 Americans celebrated that “The great fact in the progress of American jurisprudence … is its tendency towards organic statute law and towards the systematizing of law; in other words, towards written constitutions and codification.” This article tests the claim of the Centennial Writers of 1876 and finds …

A Pragmatic Approach To Interpreting The Federal Rules, Suzette M. Malveaux

Publications

No abstract provided.

All Together Now: Using Principles Of Group Dynamics To Train Better Jurors, Sara Gordon

Scholarly Works

We ask juries to make important decisions that have a profound impact on people’s lives. We leave these decisions in the hands of groups of laypeople because we hope that the diverse range of experiences and knowledge in the group will lead to more thoughtful and informed decisionmaking. Studies suggest that diverse groups of jurors have different perspectives on evidence, engage in more thorough debate, and more closely evaluate facts. At the same time, there are a variety of problems associated with group decisionmaking, from the loss of individual motivation in group settings, to the vulnerability of groups to various …

Proportionality And The Social Benefits Of Discovery: Out Of Sight And Out Of Mind?, Stephen B. Burbank

All Faculty Scholarship

In this short essay, based on remarks delivered at the 2015 meeting of the AALS Section of Litigation, I use a recent paper by Gelbach and Kobayashi to highlight the risk that, in assessing the proportionality of proposed discovery under the 2015 amendments to Rule 26 of the Federal Rules of Civil Procedure, federal judges will privilege costs over benefits, and private over public interests. The risk arises from the temptation to focus on (1) the interests of those who are present to the detriment of the interests of those who are absent (“the availability heuristic”), and (2) variables that …

Disappearing Claims And The Erosion Of Substantive Law, J. Maria Glover

Georgetown Law Faculty Publications and Other Works

The Supreme Court’s arbitration jurisprudence from the last five years represents the culmination of a three-decade-long expansion of the use of private arbitration as an alternative to court adjudication in the resolution of disputes of virtually every type of justiciable claim. Because privatizing disputes that would otherwise be public may well erode public confidence in public institutions and the judicial process, many observers have linked this decades-long privatization of dispute resolution to an erosion of the public realm. Here, I argue that the Court’s recent arbitration jurisprudence undermines the substantive law itself.

While this shift from dispute resolution in courts—the …

A Framework For Understanding Property Regulation And Land Use Control From A Dynamic Perspective, Donald J. Kochan

Donald J. Kochan