Law Commons^™

Proving Racism: Gibson Bros. Inc. V. Oberlin College And The Implications On Defamation Law, Liam H. Mcmillin

University of Cincinnati Law Review

No abstract provided.

Judicial Federalism And The Appropriate Role Of The State Supreme Courts: A 20-Year (2000–2020) Study Of These Courts’ Interest Evaluations Of The Fruits And The Attenuation Doctrines, Dannye R. Holley Mr.

St. Mary's Law Journal

The current composition of the United States Supreme Court increases the probability that the Court will be more likely to side with the government with respect to identifying, evaluating, and reconciling the interest of the government versus those of the people when issues of “policing” reach the high court. This opens the door for state supreme court to independently assess individually and collectively these seemingly competing interests and potentially provide greater protections to the interest of the people.

This Article is a twenty-year study of dozens of state supreme court decisions made during the period of 2000–2020. The decisions focused …

The Incompatibility Of Due Process And Naked Statistical Evidence, G. Alexander Nunn

Vanderbilt Law Review

Qualitative evidence is a cornerstone of the modern trial system. Parties often invoke eyewitness testimony, character witnesses, or other forms of direct and circumstantial evidence when seeking to advance their case in the courtroom, enabling jurors to reach a verdict after weighing two competing narratives.' But what if testimonial, experience-based evidence were removed from trials? In a legal system that draws its legitimacy from centuries of tradition-emphasizing notions of fairness even above absolute accuracy. Would a jury, not to mention the public at large, reject a verdict that imposes liability or guilt on a defendant in the complete absence of …

Affirmative Defenses; Defendant's Burden Of Proof: Defense Of Extreme Emotional Disturbance; Due Process; Patteron V. New York, Lee Ann Johnson

Akron Law Review

The United States Supreme Court in Patterson v. New York upheld the constitutionality of a New York murder statute which places on the defendant the burden of proving extreme emotional disturbance. The Court thereby determined that New York courts in applying the statute against defendant Gordon Patterson had not violated his right to due process of law

Appellate Division, Fourth Department, People V. Hall, Eric Pack

Touro Law Review

No abstract provided.

Doctors & Juries, Philip G. Peters Jr.

Michigan Law Review

Physicians widely believe that jury verdicts are unfair. This Article tests that assumption by synthesizing three decades of jury research. Contrary to popular belief the data show that juries consistently sympathize more with doctors who are sued than with patients who sue them. Physicians win roughly half of the cases that expert reviewers believe physicians should lose and nearly all of the cases that experts feel physicians should win. Defendants and their hired experts, it turns out, are more successful than plaintiffs and their hired experts at persuading juries to reach verdicts contrary to the opinions of independent reviewers.

Of Course We Believe You, But - The Third Circuit's Position On Corroboration Of Credible Testimony, Brian P. Downey, Angelo, A. Stio Iii

Villanova Law Review

No abstract provided.

Title Vii Quid Pro Quo And Hostile Environment Sexual Harassment Claims: Changing The Legal Framework Courts Use To Determine Whether Challenged Conduct Is Unwelcome, Elsie Mata

University of Michigan Journal of Law Reform

In examining the nature of sexual harassment claims, the author challenges the use of the "unwelcomeness" element to distinguish actionable conduct from nonactionable conduct. The author contends that the "unwelcomeness" element demeans women in two ways: (1) it assumes the male perspective and presumes that the plaintiff appreciated the challenged conduct unless she proves otherwise; and (2) it allows the defense to engage in intrusive, irrelevant, and damaging inquiries as it attempts to refute the plaintiff's allegation that the challenged conduct was unwelcome.

The author argues for three reforms. First, courts should shift the burden of proving that the challenged …

Felton V. Felton: A Case Study , James Wilsman

Cleveland State Law Review

The Felton decision ends years of conflict among Ohio's Appellate Districts as to whether or not the higher burden of proof of "clear and convincing evidence" is required in domestic violence cases. This article discusses the issue of whether the court inadvertently violated the constitutional rights of those individuals accused of committing acts of domestic violence. The author suggests that by abrogating the need for corroborating evidence, the Court has, in effect, made it difficult for those individuals who are innocent from protecting themselves against false allegations. Part II discusses the Felton case, while Part III briefly walks through the …

The Title Vii Pretext Question: Resolved In Light Of St. Mary's Honor Center V. Hicks, Robert J. Smith

Indiana Law Journal

No abstract provided.

St. Mary's Honor Center V. Hicks: Interpretation Of Title Vii Takes A Wrong Turn, Teresa C. Postle

West Virginia Law Review

No abstract provided.

Mandatory And Permissive Presumptions In Criminal Cases: The Morass Created By Allen, Shari L. Jacobson

University of Miami Law Review

No abstract provided.

Bibbs V. Block: Standard Of Causation And Burden Of Proof In An Individual Disparate Treatment Action Under Title Vii

Washington and Lee Law Review

No abstract provided.

Allen V. The United States Of America: The “Substantial” Connection Between Nuclear Fallout And Cancer, Daniel Swartzman, Tom Christoffel

Touro Law Review

No abstract provided.

Burdens Of Proof: Degrees Of Belief, Quanta Of Evidence, Or Constitutional Guarantees?, C.M.A. Mccauliff

Vanderbilt Law Review

This Article analyzes the whole range of burdens of proof as well as their constitutional implications. Part H of the Article discusses the traditional burdens of proof and the use of probability theory in legal fact finding. Part HI of the Article studies the decision making processes of law enforcement officers, the judges that review their decisions, and the decision making processes in appellate and administrative review. Part IV of the Article returns to the trial process and analyzes burdens of proof, not as degrees of belief, but as reflections of constitutional due process that mandate a required degree of …

Due Process And The Insanity Defense: The Supreme Court's Retreat From Winship And Mullaney, Jeffrey A. Burger

Indiana Law Journal

No abstract provided.

Liquidated Damages As Prima Facie Evidence, James Patrick Fenton

Indiana Law Journal

No abstract provided.

The Law Of Presumptions: A Look At Confusion, Kentucky Style, Robert G. Lawson

Kentucky Law Journal

No abstract provided.

Burden Of Proof And Choice Of Forum In Tax Litigation, George L. Whitfield, Charles E. Mccallum

Vanderbilt Law Review

Since the burden of proof may be a decisive factor in tax litigation, it is important that the taxpayer be aware of the different rules in the various forums to which he may take a tax controversy, and it is essential that those rules operate fairly and consistently to enable the taxpayer to choose his forum intelligently. It is the purpose of this article to examine the burden of proof in tax litigation as it affects the choice of forum problem.

Social Security Disability Determinations: The Burden Of Proof On Appeal, Michigan Law Review

Michigan Law Review

In 1956, the Social Security Act was amended to provide monthly disability insurance benefits to qualifying individuals under a uniform national program administered by the Secretary of Health, Education, and Welfare. Under this program, a claimant is entitled to disability benefits if he is unable to "engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to be of long continued and indefinite duration." This definition and its accompanying statutory standards were purposely made conservative in order to minimize the problems inherent in initiating the program; it was contemplated that …

Procedure And Evidence -- 1962 Tennessee Survey, Edmund M. Morgan

Vanderbilt Law Review

Construction of Pleading--Where the plaintiffs bill of complaint for specific performance of a contract for the purchase of a specified parcel of realty discloses on its face that the agreement was oral, the defendant may raise the defense of the statute of frauds by demurrer.'

Burden of Proof and Presumptions--The current decisions do little to clear up the confusion caused by the use of the term presumption, though it is usually not too difficult to determine the effect intended to be given it in a particular case.

Judicial Notice--The cases in which the Tennessee courts have applied the doctrine of …

A Radical Restatement Of The Law Of Seller's Damages: Michigan Results Compared, Robert J. Harris

Michigan Law Review

Conventional doctrine does not address itself directly to the choice among valuation techniques, although the various parochial damage formulae give some clues. Underlying this series of articles is an assumption that the doctrine makes more sense when restated in valuation terms. These articles involve an effort to restate in such terms one sector of expectation damage law-the part that governs cases in which plaintiff is a "seller."

Procedure And Evidence -- 1961 Tennessee Survey (Ii), Edmund M. Morgan, Joel F. Handler

Vanderbilt Law Review

Construction of Pleading--(a) Conclusions.- In an action by the administratrix of a decedents estate the allegations in the complaint that the intestate had a policy of insurance on his life for $1,500 and was induced by the fraud of defendant to make defendant the beneficiary by which she was able to collect the money upon his death and "that this $1500 insurance money is the property of the estate and defendant is accountable to complainant as administratrix of the estate" are sufficient as against ademurrer on the ground that the complaint fails to show any right or title in complainant …

Evidence - Presumptions - Statutory Presumption Of Due Care In Wrongful Death Action, Francis X. Beytagh Jr.

Michigan Law Review

Consolidation of two actions arising from a multi-vehicle highway accident resulted in verdicts in both causes against appellants. One action was brought against appellants by the administratrix of a deceased driver under a wrongful death statute, and resulted in a verdict for the administratrix because of a statutory presumption of deceased's due care. The other action was a personal injury suit by a third party against appellants and the administratrix as co-defendants, and resulted in a verdict exonerating the deceased driver, despite circumstances raising an inference of his negligence. Appellants' motions for judgment notwithstanding the verdict and new trial were …

Evidence--Burden Of Proof--Presumption Of Innocence, Esdel Beane Yost

West Virginia Law Review

No abstract provided.

Procedure And Evidence -- 1960 Tennessee Survey, Edmund M. Morgan

Vanderbilt Law Review

This survey is in large part merely what Professor Chafee once characterized as a horizontal digest. In the previous survey a request was made that interested members of the Bar advise the "Editor-in-Chief of this Review whether the character of the annual survey of this subject should be changed. The request is repeated herewith.

Procedure And Evidence--1959 Tennessee Survey, Edmund M. Morgan

Vanderbilt Law Review

This survey of Procedure and Evidence is in most respects merely a horizontal digest of the cases which have been published between June 1, 1958, and June 1, 1959. Only a few decisions are of the character and importance that would call for comment in regular course in a law review like the Vanderbilt Law Review. Many of them are mere illustrations of inexcusable disregard by counsel of our applicable statutes and rules and previous decisions of our appellate courts interpreting them. Whether this sort of treatment of the subject is justifiable is open to serious question. The answer depends …

Variable Verbalistics -- The Measure Of Persuasion In Tennessee, Kenneth L. Roberts, William M. Sinrich

Vanderbilt Law Review

In a trial one party always has the affirmative burden of persuading the finder of fact to adopt his allegations as true. This burden is met by inducing a particular degree of belief in the mind of the fact finder.'Manifestly, absolute truth is not attainable in a lawsuit. Rather certain facts are found to exist from all the evidence presented and these findings labeled true for the purposes of the case. Since different factual situations require different measures of persuasion, it is necessary that the fact finder, whether judge or jury, know and understand the particular measure applicable in order …

Presumptions In A One-Rule World, Alfred L. Gausewitz

Vanderbilt Law Review

In the 54 years since Thayer wrote the first excerpt, an enormous amount of excellent scholarship has been devoted to presumptions. Yet confusion persists. It may not be presumptuous, therefore, to suggest some causes of confusion more radical than those mentioned by Professor Morgan in the second excerpt quoted above. This is not to say that he has not stated them. In fact he has painstakingly pointed out the fundamental difficulties in a number of articles written both before and after he became draftsman of the Model Code. As draftsman he has had to carry a burden of expounding it …

Burden Of Proof And Presumptions In Will Contests In Tennessee, Edmund M. Morgan

Vanderbilt Law Review

Burden of proof is a slippery phrase. It is used to describe the burden of producing evidence sufficient to justify a finding or the burden of persuading the trier to make a finding or both these burdens.' Thayer noted the confusion in the judicial opinions caused by this loose use of language. In his essay, in attempting to bring order into the subject, he stated first that the burden of persuasion is fixed by the pleadings or their equivalent at a stage of the proceedings preliminary to trial and second, that once fixed, it never shifts. These pronouncements have received …