Evidence And The Pursuit Of Truth In The Law, 2014 SelectedWorks
Evidence And The Pursuit Of Truth In The Law, Jeffery L. Johnson
Jeffery L Johnson
Lawyers should be much more concerned with the concepts of truth and evidence. The entire profession depends on truth. It is what police detectives, District Attorneys, juries, trial judges, appellate judges, and academic lawyers offering interpretive theories, are all concerned with. But, since truth is seldom apparent on its sleeve, these legal actors are equally dependent on evidence as the only(?) reliable(?) means of determining truth. I defend a commonsensical theory of [good] evidence. I argue that this view, inference to the best explanation, captures most, if not all, of a lawyer’s appeal to evidence. It is far from ...
Impropriety’S Invisible Hand: Judicial Race And Gender Biases Within State Supreme Courts, Robert K. Christensen, John Szmer, Anthony M. Kreis
No abstract provided.
Chinese Courts' Role In Financial Reform: On The First "Vam Agreement" Case In China, Siyi Huang
Traditional belief is that courts in authoritarian regimes are only passive institutions and their authority and influence are extremely limited. Despite the conventional wisdom, it’s been noticed that Chinese courts have played a crucial role in China’s financial reform. Drawing on insights from the judgments of three Chinese courts at different levels on the first “value adjustment mechanism” case in China, this article attempts to explore the functional techniques and decision-making process of Chinese courts. The analysis of the court’ judgments suggests that Chinese courts have performed a policy-making function in deciding controversial economic cases, by transcending social ...
Criminal Innovation And The Warrant Requirement: Reconsidering The Rights-Police Efficiency Trade-Off, Tonja Jacobi, Jonah Kind
It is routinely assumed that there is a trade-off between police efficiency and the warrant requirement. But existing analysis ignores the interaction between police investigative practices and criminal innovation. Narrowing the definition of a search or otherwise limiting the requirement for a warrant gives criminals greater incentive to innovate to avoid detection. With limited police resources to develop countermeasures, police will often be just as effective at capturing criminals when facing higher Fourth Amendment hurdles. We provide a game theoretic model that shows that when police investigation and criminal innovation are considered in a dynamic context, the police efficiency rationale ...
Bounties For Bad Behavior: Rewarding Culpable Whistleblowers Under The Dodd-Frank Act And Internal Revenue Code, Jennifer M. Pacella
Jennifer M. Pacella, Esq.
In 2012, Bradley Birkenfeld received a $104 million reward or “bounty” from the Internal Revenue Service (“IRS”) for blowing the whistle on his employer, UBS, which facilitated a major offshore tax fraud scheme by assisting thousands of U.S. taxpayers to hide their assets in Switzerland. Birkenfeld does not fit the mold of the public’s common perception of a whistleblower. He was himself complicit in this crime and even served time in prison for his involvement. Despite his conviction, Birkenfeld was still eligible for a sizable whistleblower bounty under the IRS Whistleblower Program, which allows rewards for whistleblowers who ...
Tell Us A Story, But Don't Make It A Good One: Resolving The Confusion Regarding Emotional Stories And Federal Rule Of Evidence 403, Cathren Page
Abstract: Tell Us a Story, But Don’t Make It A Good One: Resolving the Confusion Regarding Emotional Stories and Federal Rule of Evidence 403
by Cathren Koehlert-Page
Courts need to reword their opinions regarding Rule 403 to address the tension between the advice to tell an emotionally evocative story at trial and the notion that evidence can be excluded if it is too emotional.
In the murder mystery Mystic River, Dave Boyle is kidnapped in the beginning. The audience feels empathy for Dave who as an adult becomes one of the main suspects in the murder of his friend ...
Behavioral International Law, 2014 SelectedWorks
Behavioral International Law, Tomer Broude
Economic analysis and rational choice have in the last decade made significant inroads into the study of international law and institutions, relying upon standard assumptions of perfect rationality of states and decision-makers. This approach is inadequate, both empirically and in its tendency towards outdated formulations of political theory. This article presents an alternative behavioral approach that provides new hypotheses addressing problems in international law while introducing empirically grounded concepts of real, observed rationality. First, I address methodological objections to behavioral analysis of international law: the focus of behavioral research on the individual; the empirical foundations of behavioral economics; and behavioral ...
Positive Prognosis For Judges: A Look Into Judge-Directed Negotiations In Medical Malpractice Cases, 2014 Pepperdine University
Positive Prognosis For Judges: A Look Into Judge-Directed Negotiations In Medical Malpractice Cases, Kristine Gamboa
Pepperdine Dispute Resolution Law Journal
The article examines the effectiveness of the judge-directed negotiation program in the Unified Court System of New York State under the analysis of various medical malpractice lawsuits, which plays a vital role in the legislational reform in the field of medical malpractice. It informs that Douglas McKeon, Judge of the Bronx County Supreme Court had developed the concept of judge-directed negotiations. It overviews the praises and criticisms behind the success of the program.
Deferential Review Of The U.S. Tax Court, After Mayo Foundation V. United States (2011), Andre L. Smith
Andre L. Smith
Deferential Review of the U.S. Tax Court, After Mayo examines whether the Chevron doctrine requires federal circuit courts of appeal to deferentially review the U.S. Tax Court decisions of law. Mayo Foundation v. US (2011) rejects tax exceptionalism and requires the U.S. Tax Court to defer to Treasury regulations carrying the force of law. But Mayo avoids dealing with whether Chevron applies to appellate review of the Tax Court. In “The Fight Over ‘Fighting Regs’ and Judicial Deference in Tax Litigation”, 92 B.U. L. Rev. 643 (2012), Professor Leandra Lederman (Indiana) contends that deference belongs to ...
The Politics Of Statutory Interpretation, 2014 Notre Dame Law School
The Politics Of Statutory Interpretation, Margaret H. Lemos
Notre Dame Law Review
In a new book, Reading Law: The Interpretation of Legal Texts, Justice Antonin Scalia and Bryan Garner describe and defend the textualist methodology for which Justice Scalia is famous. For Scalia and Garner, the normative appeal of textualism lies in its objectivity: by focusing on text, context, and canons of construction, textualism offers protection against ideological judging—a way to separate law from politics. Yet, as Scalia and Garner well know, textualism is widely regarded as a politically conservative methodology. The charge of conservative bias is more common than it is concrete, but it reflects the notion that textualism narrows ...
The Unitary Executive And The Plural Judiciary: On The Potential Virtues Of Decentralized Judicial Power, 2014 Notre Dame Law School
The Unitary Executive And The Plural Judiciary: On The Potential Virtues Of Decentralized Judicial Power, Ronald J. Krotoszynski, Jr.
Notre Dame Law Review
The federal judiciary features a highly decentralized system of courts. The Supreme Court of the United States reviews only a few dozen cases each year. Meanwhile, regional U.S. courts of appeals operate independently of each other; district courts further divide and separate the exercise of federal judicial power. The role of the state courts in enforcing federal law further subdivides responsibility for the adjudication of federal law claims. Indeed, the Office of Chief Justice itself incorporates and reflects this vesting of the judicial power of the United States exclusively in collegial institutions—literally in a multiplicity of hands—effectively ...
The Rule Of Law And The Judicial Function In The World Today, 2014 Notre Dame Law School
The Rule Of Law And The Judicial Function In The World Today, Diarmuid F. O’Scannlain
Notre Dame Law Review
The world’s oldest written constitution still in effect has many inspiring lines, but perhaps the one that most stirs the souls of the patriotic appears in Article 30. Delineating a familiar separation of powers, that Article forbids the legislative, executive, and judicial branches from swapping or mixing functions. “[T]o that end”—and here’s the line—“it may be a government of laws and not of men.” John Adams, the author of that line and most of the rest of the Constitution of the Commonwealth of Massachusetts, penned those words in 1779, eight years before the adoption of ...
Confronting The Peppercorn Settlement In Merger Litigation: An Empirical Analysis And A Proposal For Reform, 2014 University of Pennsylvania Law School
Confronting The Peppercorn Settlement In Merger Litigation: An Empirical Analysis And A Proposal For Reform, Steven M. Davidoff, Jill Fisch, Sean J. Griffith
Shareholder litigation challenging corporate mergers is ubiquitous, with the likelihood of a shareholder suit exceeding 90%. The value of this litigation, however, is questionable. The vast majority of merger cases settle for nothing more than supplemental disclosures in the merger proxy statement. The attorneys that bring these lawsuits are compensated for their efforts with a court-awarded fee. This leads critics to charge that merger litigation benefits only the lawyers who bring the claims, not the shareholders they represent. In response, defenders of merger litigation argue that the lawsuits serve a useful oversight function and that the improved disclosures that result ...
Experimental Rules, 2014 Boston College Law School
Experimental Rules, Zachary J. Gubler
Boston College Law Review
When forming policy under conditions of extreme uncertainty, the optimal approach seems to be a process by which the policy decision is divided into multiple stages, or in other words, an experimental approach. The optimal legal vehicle for such policy experimentation is what this Article refers to as “experimental rules,” which are rules that terminate automatically and are designed for the express purpose of generating data during the sunset period that can then be used to determine the optimal policy strategy for the long run. Yet it turns out that agencies rarely adopt such “experimental rules” in the real world ...
Justice Jesse Carter Distinguished Lecture With John Burris, 2014 Golden Gate University School of Law
Justice Jesse Carter Distinguished Lecture With John Burris, John Burris
The Jesse Carter Distinguished Lecture Series
John Burris (BS 67)
Renowned Civil Rights Attorney
John Burris (BS 67) has a tremendous record as a plaintiff's civil rights attorney. Among his most high profile cases were the Oakland Riders class action and Rodney King civil suit against the City of Los Angeles. His primary areas of focus for his practice include cases involving police misconduct, employment discrimination and criminal defense. He is the author of Blue vs. Black: Let's End the Conflict between Police and Minorities.
Burris has represented Barry Bonds, Tupac Shakur, Delrov Lindo, Dwayne Wiggins, Keyshawn Johnson, Gary Payton, Jason Kidd, Latrell Sprewell ...
“Clear Beyond The Peradventure Of A Doubt,” Or, Plain English, 2014 SelectedWorks
“Clear Beyond The Peradventure Of A Doubt,” Or, Plain English, Curtis E.A. Karnow
Curtis E.A. Karnow
The article urges judges and lawyers to write briefs and opinions in plain English. This outreach from the legal world to the public is important. As the public understands what courts do, the public will be increasingly supportive of the courts, more likely to comply with courts directives, and more likely to engage in meaningful debate concerning the justice system. In this sense, writing in plain English is a civic duty.
American Citations And The Mclachlin Court: An Empirical Study, 2014 Osgoode Hall Law School of York University
American Citations And The Mclachlin Court: An Empirical Study, Peter Mccormick
Osgoode Hall Law Journal
This article examines the use of American jurisprudence by the judges of the McLachlin Court, using an earlier study of such citations as a reference point. In addition to tracking overall use of American citations over time, it looks at these trends: which Canadian judges use American cases and for which types of cases; and which American cases, courts, and judges are being cited. Brief descriptions of the Supreme Court cases with the largest use of American citations precede a categorization of the results. The article confirms previous academic findings that the use of American citations have been modest, with ...
Policy Preference Change And Appointments To The Supreme Court Of Canada, 2014 Osgoode Hall Law School of York University
Policy Preference Change And Appointments To The Supreme Court Of Canada, Benjamin Alaire, Andrew Green
Osgoode Hall Law Journal
Canadian prime ministers appoint judges to the Supreme Court of Canada at their own discretion. This practice has been criticized as providing prime ministers with the ability to appoint judges whose policy preferences are regarded as politically congenial. We examine the Court's judgments in the post-Charter era to discern the apparent policy preferences of the judges. Our results suggest that the policy preferences of judges are not strongly associated with the political party of the prime minister and that their policy preferences shift over time in seemingly unpredictable ways. We discuss the implications of this analysis for possible reforms ...
Book Review: "Supremely Simple" (Reviewing Professor Eric J. Segall's "Supreme Myths: Why The Supreme Court Is Not A Court And Its Justices Are Not Judges"), Calvin J. Terbeek
Calvin J TerBeek
Professor Eric Segall wants to make the Supreme Court a much more boring institution. All those highly-charged, 5-4, end of term decisions concerning the hot-button culture war issues? Gone. Segall’s thesis is straightforward: “unless the constitutional text or undisputed history behind that text forecloses a governmental decision, the Court should defer to the elected branches and the states” (p. 168). This is because, according to Segall, the Supreme Court is not a real court and the Justices do not act like real judges. However, Segall's blinkered view of the Court shows that he is more than an attitudinalist ...
"Was It Something I Said?": Losing The Majority On The Modern Supreme Court Of Canada, 1984-2011, 2014 Osgoode Hall Law School of York University
"Was It Something I Said?": Losing The Majority On The Modern Supreme Court Of Canada, 1984-2011, Peter J. Mccormick
Osgoode Hall Law Journal
Appeal court judges do not just vote and run; they vote and then they explain, at length, why theirs is the most reasonable position. Since the core of explanation is persuasion, this means that between the initial conference vote and the final decision, some of the judges sometimes change their minds; and this in turn means that sometimes an initial majority becomes a minority and vice versa, something which often leaves clear footprints in the written record. This paper demonstrates that this happens more often than we might think—some 255 times for the last three Chief Justiceships, or roughly ...