Law Commons^™

Doubting What The Elders Have To Say, David Milward

Dr. David Milward

The Supreme Court of Canada has articulated several legal principles that mandate the flexible and generous treatment of Aboriginal oral history evidence in support of Aboriginal rights claims. Lower courts, however, continue to devalue such evidence, often displaying explicit disregard for the legal principles, in order to defeat rights claims and subordinate Aboriginal interests to state sovereignty. This has no rational basis, since it is now clearly established that documentary historical evidence does not have any innate superiority over oral history evidence when it comes to ascertaining what happened in the past. This article proposes several solutions. These include educating …

Omg! Evidence Challenges In An Electronic World, Mary Sue Backus

Mary Sue Backus

No abstract provided.

Plea Bargainng, Discovery, And Waivers, R. Michael Cassidy

R. Michael Cassidy

No abstract provided.

Managing The Unmanageable: A Brief Accounting Of A Special Master’S Thirty Years Of Experience In Complex Litigation, Paul Rice

Paul Rice

Managing an efficient, but fair, pretrial process in a large and complex case has always been a challenge. With the advent of electronic communications and the corresponding explosion of privilege claims, this challenge has become significantly more difficult. Indeed, it is not uncommon for corporate parties to assert tens of thousands, if not hundreds of thousands, of privilege claims. Furthermore, the resolution of these privilege questions is often compounded by difficult choice of law questions that can have the result of different substantive principles being applied to identical discovery demands originating in different jurisdictions. Additionally, before addressing the increasingly voluminous …

Managing The Unmanageable: A Brief Accounting Of A Special Master’S Thirty Years Of Experience In Complex Litigation, Paul Rice

Paul Rice

Managing an efficient, but fair, pretrial process in a large and complex case has always been a challenge. With the advent of electronic communications and the corresponding explosion of privilege claims, this challenge has become significantly more difficult. Indeed, it is not uncommon for corporate parties to assert tens of thousands, if not hundreds of thousands, of privilege claims. Furthermore, the resolution of these privilege questions is often compounded by difficult choice of law questions that can have the result of different substantive principles being applied to identical discovery demands originating in different jurisdictions. Additionally, before addressing the increasingly voluminous …

Managing The Unmanageable: A Brief Accounting Of A Special Master’S Thirty Years Of Experience In Complex Litigation, Paul Rice

Paul Rice

Managing an efficient, but fair, pretrial process in a large and complex case has always been a challenge. With the advent of electronic communications and the corresponding explosion of privilege claims, this challenge has become significantly more difficult. Indeed, it is not uncommon for corporate parties to assert tens of thousands, if not hundreds of thousands, of privilege claims. Furthermore, the resolution of these privilege questions is often compounded by difficult choice of law questions that can have the result of different substantive principles being applied to identical discovery demands originating in different jurisdictions. Additionally, before addressing the increasingly voluminous …

Silent At Sentencing: Waiver Doctrine And A Capital Defendant's Right To Present Mitigating Evidence After Schriro V. Landrigan, Dale E. Ho

Dale E Ho

The consideration of mitigating evidence—evidence that weighs against the imposition of the death penalty in a capital defendant’s individual case—has been deemed a “constitutionally indispensable” feature of a valid capital sentencing scheme. And yet, Jeffrey Landrigan, like many capital defendants, was sentenced to death without the consideration of any mitigating evidence whatsoever. Landrigan’s trial counsel failed to uncover substantial evidence of Landrigan’s history of severe physical and sexual abuse as a child, and of the possible biological effects of his mother’s alcohol and drug abuse. Every member of the Ninth Circuit en banc panel considering his case deemed his counsel’s …

Limites A La Vigencia Del Principio Contradictorio En Los Juicios De Familia / Limits To The Adversarial Ideal In The Family Courts, Claudio Fuentes Maureira

Claudio Fuentes Maureira

The relevance of the adversarial ideal in the design of judicial proceedings is due to two major ideas: the right to a proper defence for the parties and the important role that the parties perform during the questioning and the control of the other party’s case. Once the relevance of the adversarial ideal is acknowledged, one could ask if this ideal is properly welcomed under the family procedure stated in the law. I propose that in order to answer this question properly, it is pertinent to use some sort of instrument to measure the amount of the adversarialness that the …

Informe De Funcionamiento De Los Tribunales De Familia De Santiago / Report On The Family Courts Of Santiago City, Claudio Fuentes Maureira, Felipe Marín Verdugo, Erick Rios Leiva

Claudio Fuentes Maureira

In October 2005, the Chilean government launched the new family courts. The new tribunals were the second major judicial reform that Chile’s executive power supported and it was a huge failure. The system collapsed after a couple of months, and in the beginning of the 2006, the executive branch called for a group of academics and experts to elaborate some kind of response.

After years of problems the authorities arrived at identifying the main problems, and because of that in September 2008 a new bill was enacted, containing modifications to the family law system. Also, the Supreme Court of Chile …

Allshouse V. Pennsylvania, Brief Of The National Association Of Criminal Defense Lawyers, The Pennsylvania Association Of Criminal Defense Lawyers, The Public Defender Association Of Pennsylvania, And The Defender Association Of Philadelphia, As Amici Curiae On Behalf Of Petitioner, Jules Epstein

Jules Epstein

No abstract provided.

Evidence Verite And The Law Of Film, Jessica M. Silbey

Jessica Silbey

This paper explores a puzzle concerning the authority of certain images that increasingly find themselves at the center of legal disputes: surveillance or “real time” film images that purport to capture an event about which there is a dispute. Increasingly, this kind of “evidence verité” is used in United States courts of law as the best evidence of what happened. Film footage of arrests, criminal confessions, photographs of crime scenes (during and after) is routinely admitted into court as evidence. It tends to overwhelm all other evidence (e.g., testimonial or documentary) and be immune to critical analysis. Why would this …

The Csi Effect: What Can Forensic Science Really Tell Us?, Mary Sue Backus

Mary Sue Backus

No abstract provided.

22. Young Children’S Emerging Ability To Make False Statements., Thomas D. Lyon, Elizabeth C. Ahern, Jodi A. Quas

Thomas D. Lyon

Development Of A Dna Database In Ireland — Assessing The Proposed Legislation, Liz Campbell

Liz Campbell

The collection and retention of DNA samples are seen universally as crucial for purposes of criminal investigation and prosecution, as a means of excluding innocent suspects, and of exonerating the wrongfully convicted. However, there is less consistency across jurisdictions regarding whose DNA should be obtained by the state and for how long it should be stored. The need for a measured approach in this context is underlined by the “exceptionalism” of genetic material, given the depth and sensitivity of the information contained within, and the potential for “function creep”, whereby state powers insidiously increase and data gathered for one purpose …

Omg! Evidence Challenges In An Electronic World, Mary Sue Backus

Mary Sue Backus

No abstract provided.

14. Investigative Interviewing Of The Child., Thomas D. Lyon

Thomas D. Lyon

21. Children’S Reasoning About Disclosing Adult Transgressions: Effects Of Maltreatment, Child Age, And Adult Identity., Thomas D. Lyon, Elizabeth C. Ahern, Lindsay A. Malloy, Jodi A. Quas

Thomas D. Lyon

Valuing Intellectual Property: An Experiment, Christopher J. Buccafusco, C. Sprigman

Christopher J. Buccafusco

In this article we report on the results of an experiment we performed to determine whether transactions in intellectual property (IP) are subject to the valuation anomalies commonly referred to as “endowment effects”. Traditional conceptions of the value of IP rely on assumptions about human rationality derived from classical economics. The law assumes that when people make decisions about buying, selling, and licensing IP they do so with fixed, context-independent preferences. Over the past several decades, this rational actor model of classical economics has come under attack by behavioral data showing that people do not always make strictly rational decisions. …

Welfare As Happiness (With J. Bronsteen & J. Masur), Christopher J. Buccafusco

Christopher J. Buccafusco

Perhaps the most important goal of law and policy is improving people’s lives. But what constitutes improvement? What is quality of life, and how can it be measured? In previous articles, we have used insights from the new field of hedonic psychology to analyze central questions in civil and criminal justice, and we now apply those insights to a broader inquiry: how can the law make life better? The leading accounts of human welfare in law, economics, and philosophy are preference-satisfaction - getting what one wants - and objective list approaches - possessing an enumerated set of capabilities. This Article …

Retribution And The Experience Of Punishment, Christopher J. Buccafusco, J. Bronsteen, J. Masur

Christopher J. Buccafusco

In a prior article, we argued that punishment theorists need to take into account the counterintuitive findings from hedonic psychology about how offenders typically experience punishment. Punishment generally involves the imposition of negative experience. The reason that greater fines and prison sentences constitute more severe punishments than lesser ones is, in large part, that they are assumed to impose greater negative experience. Hedonic adaptation reduces that difference in negative experience, thereby undermining efforts to achieve proportionality in punishment. Anyone who values punishing more serious crimes more severely than less serious crimes by an appropriate amount - as virtually everyone does …

Foreword: Why "The Child Witness" Now?, Jules Epstein

Jules Epstein

No abstract provided.

Voodoo Information: Authenticating Web Pages In Federal Court, M. Anderson Berry, David Kiernan

M. Anderson Berry

For many litigators, one of the first things they do is see what is available about the opposing party, searching Google, social networking sites and the party’s websites. And during the life of the case, there will likely be other valuable information obtained from the Internet that will be used at deposition or trial. Commonly, the proponent of online evidence will present a “screen shot” of the webpage, which was either downloaded as a .pdf or printed directly from the website. If proper steps are not taken to admit the evidence, the value of this information may be lost.

As …

The Rise, Fall And Rise Again Of The Genetic Foundation For Legal Parentage Determination, Yehezkel Margalit

Hezi Margalit

Recently, we have witnessed dramatic changes in the formation of the family and parenthood. One of the results of those shifts is a growing number of children growing up outside of the traditional marriage framework. Therefore, the dilemma of determining a child's parentage, which was usually resolved by a legal fiction as to the child's legal parents, is becoming increasingly problematic. It is appropriate that any discussion of the establishment of legal parentage should start with a study of the rise of the most popular modern model, the genetic model.

It is relevant to point out that from the beginning …

Just The Facts: Solving The Corporate Privilege Waiver Dilemma, Don R. Berthiaume

Don R Berthiaume

How can corporations provide “just the facts” — which are, in fact, not privileged — without waiving the attorney client privilege and work product protection? This article argues for an addition to the Federal Rules of Criminal Procedure based upon Rule 30(b)(6) of the Federal Rules of Civil Procedure, which allows civil litigants to issue a subpoena to an organization and cause them to “designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf … about information known or reasonably available to the organization.”[6] Why should we look to Fed. …

La Declaración De La Parte Como Medio De Prueba, Felipe Marín Verdugo

Felipe Marín Verdugo

Chilean Family and Labor procedures went from a written procedure to a hearing-based procedure, but judges are still "thinking" within the written procedure scope. This paper identifies one of the consequences of this approach: they are wrongly excluding parties as witnesses. The paper will argue againt this practice.

Can Criminal Law Be Controlled?, Darryl K. Brown

Darryl K. Brown

This review of Douglas Husak's 2008 book, Overcriminalization: The Limits of the Criminal Law, summarizes and largely endorses Husak's normative argument about the indefensible expansiveness of much contemporary criminal liability. It then offers a skeptical (or pessimistic) argument about the possibilities for a normative theory such as Husak's to have much effect on criminal justice policy in light of the political barriers to reform.

Panelist, Developments In Criminal Procedure, R. Michael Cassidy

R. Michael Cassidy

No abstract provided.

Orwellian Ramifications: The Contraband Exception To The Fourth Amendment, Timothy Macdonnell

Timothy C. MacDonnell

Lawyers And Fundamental Moral Responsibility, R. Michael Cassidy, Daniel Coquillette, Judith Mcmorrow

R. Michael Cassidy

The materials in this book are organized around specific problems designed to encourage and focus class discussion. There are two other inherent organizing principles of the materials in this book. First, the philosophical materials are in the rough order in which the ideas themselves evolved in the history of philosophy. The materials have been revised since the book first was published in 1995 to address some of the burning ethical problems of our day, including terrorism, national security, and abuse of government power. The Second Edition also is reorganized to assist students to better appreciate philosophical theories underpinning discourse about …

Hearings, Mark Spottswood

Mark Spottswood

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 …