Law Commons^™

Antitrust Harm And Causation, Herbert J. Hovenkamp

All Faculty Scholarship

How should plaintiffs show harm from antitrust violations? The inquiry naturally breaks into two issues: first, what is the nature of the harm? and second, what does proof of causation require? The best criterion for assessing harm is likely or reasonably anticipated output effects. Antitrust’s goal should be output as high as is consistent with sustainable competition.

The standard for proof of causation then depends on two things: the identity of the enforcer and the remedy that the plaintiff is seeking. It does not necessarily depend on which antitrust statute the plaintiff is seeking to enforce. For public agencies, enforcement …

Servotronics, Inc. V. Rolls-Royce Plc And The Boeing Company: Brief Of Professor Yanbai Andrea Wang As Amicus Curiae In Support Of Neither Party, Yanbai Andrea Wang, Michael H. Mcginley

All Faculty Scholarship

Rather than expressing a view on the issues raised and ably briefed by the parties, amicus submits this brief to inform the Court of the scholarly research she has conducted regarding Section 1782 proceedings since this Court’s seminal decision in Intel. As Section 1782 applications have proliferated, the lower courts have struggled to apply the Intel factors as this Court had envisioned. Especially in the context of Section 1782 applications submitted by parties to an international proceeding (as opposed to those made by the international tribunal itself), lower courts have frequently found themselves unable to analyze and apply the …

Scientific Gerrymandering & Bifurcation, Katrina F. Kuh, Megan Edwards, Frederick A. Mcdonald

Elisabeth Haub School of Law Faculty Publications

Environmental litigation must often examine the propriety of corporate conduct in areas of scientific complexity. In the second generation of climate nuisance suits, for example, allegations of corporate participation in the climate disinformation campaign are woven into plaintiffs’ claims. Toxic tort suits, currently and most notably in the Roundup and PFAS litigation, present another area of environmental litigation grappling with the legal ramifications of alleged corporate deception about scientific information. Toxic tort suits often surface allegations, and in many cases disturbing evidence, of what we term corporate “scientific gerrymandering”— corporate efforts to finesse, slow, or even mislead scientific understanding of …

Do You See What I See? The Science Behind Utah Rule Of Evidence 617, Louisa Heiny

Utah Law Faculty Scholarship

Eyewitness identifications play a key role in many investigations and are often central to a prosecutor’s case. At the same time, eyewitness identifications can be tainted, accidentally or purposely, thus tainting the justice system as well. There are myriad reasons for this phenomenon, but the primary responsibility lies not with the witness, but rather a system that fails to recognize, and often amplifies, mistakes and assumptions in the identification process.

Recollections Refreshed And Recorded, Len Niehoff

Articles

Witnesses forget stuff. When they do, the evidence rules give us two tools to help solve the problem. Lawyers call one "refreshed recollection" and the other "past recollection recorded," labels just similar enough to guarantee confusion. Nevertheless, these principles get at very different things and are well worth the effort necessary to distinguish and understand them. So how do we get there?

Know Every Document And Piece Of Evidence In Your File, Rachel Brockl

Publications

Knowing every document and piece of evidence in your case file is imperative to competent preparation of your case. While this may sound obvious, many attorneys fail to follow this advisement to their own peril. The reasons for knowing your case file in and out are threefold: (1) you want to be the case master, (2) you do not want to be caught off-guard, and (3) your reputation is on the line.

Confrontation In The Age Of Plea Bargaining [Comments], William Ortman

Law Faculty Research Publications

No abstract provided.

Junk Science At Sentencing, Maneka Sinha

Faculty Scholarship

Junk science used in criminal trials has contributed to hundreds of wrongful convictions. But the problem is much worse than that. Junk science does not only harm criminal defendants who go to trial, but also the overwhelming majority of defendants—over ninety-five percent—who plead guilty, skip trial, and proceed straight to sentencing.

Scientific, technical, and other specialized evidence (“STS evidence”) is used regularly, and with increasing frequency, at sentencing. Despite this, Federal Rule of Evidence 702 and its state equivalents—which help filter unreliable STS evidence at trials—do not apply at the critical sentencing stage. In fact, at sentencing, no meaningful admissibility …

The Disruption Of Covid-19: How A Virtual World Creates Opportunity For Improvement In The Criminal Justice System’S Treatment Of Complainants Of Sexual Violence, Leah Roberston

Law in a Post-Pandemic World

This paper argues that the COVID-19 pandemic has normalized video conferencing within the legal system such that survivors ought to be able to routinely testify outside of the court environment. Though there have always been high rates of sexualized violence, the onset of the pandemic has led to increased rates of sexualized violence, which could lead to greater numbers of trials prosecuting perpetrators. However, only a small amount of complainants turn to the court as a form of justice. This is likely due to the inhumane conditions inflicted on complainants during the trial process. The pandemic has revealed that the …

The Functional Operation Of Workers’ Compensation Covid Presumptions, Michael C. Duff

All Faculty Scholarship

During 2020, a number of U.S. states implemented workers' compensation COVID-19 presumptions. This short informal paper defines and explains legal presumptions generally and then discusses the workers' compensation presumptions. The paper contends that at this juncture it is not clear whether states intended to enact "Thayer-Wigmore" or "Morgan" presumptions; but if they operate as Thayer-Wigmore presumptions they will not do workers' compensation claimants much good in the context of non-jury proceedings presided over by administrative law judges.

The Evidence Rules That Convict The Innocent, Jeffrey Bellin

Faculty Publications

Over the past decades, DNA testing has uncovered hundreds of examples of the most important type of trial errors: innocent defendants convicted of serious crimes like rape and murder. The resulting Innocence Movement spurred reforms to police practices, forensic science, and criminal procedure. This Article explores the lessons of the Innocence Movement for American evidence law.

Commentators often overlook the connection between the growing body of research on convictions of the innocent and the evidence rules. Of the commonly identified causes of false convictions, only flawed forensic testimony has received sustained attention as a matter of evidence law. But other …

The Euclid Proviso, Ezra Rosser

Articles in Law Reviews & Other Academic Journals

This Article argues that the Euclid Proviso, which allows regional concerns to trump local zoning when required by the general welfare, should play a larger role in zoning's second century. Traditional zoning operates to severely limit the construction of additional housing. This locks in the advantages of homeowners but at tremendous cost, primarily in the form of unaffordable housing, to those who would like to join the community. State preemption of local zoning defies traditional categorization; it is at once both radically destabilizing and market-responsive. But, given the ways in which zoning is a foundational part of the racial and …

Completing The Quantum Of Evidence, Edward K. Cheng

Vanderbilt Law School Faculty Publications

In "Evidentiary Irony and the Incomplete Rule of Completeness," Professors Daniel Capra and Liesa Richter comprehensively catalog the many shortcomings in current Federal Rule of Evidence 106 and craft a compelling reform proposal. Their proposal admirably solves the identified problems, keeps the rule reasonably succinct, and furthers the accuracy and fairness goals of the rules of evidence. In this Response, we focus on Capra & Richter's proposal to formally recognize a "trumping" power in Rule 106, which would allow an adverse party to offer a completing statement even if it would be "otherwise inadmissible under the rule against hearsay."

“Rule Of Inclusion" Confusion, Dora Klein

Faculty Articles

Some rules of evidence are complex. The federal rules governing the admissibility of hearsay statements,' for example, include at least forty different provisions. Numerous judges and scholars have commented on the complexity of the hearsay rules. Not all rules of evidence are complex, however. For example, the federal rules governing the admissibility of character evidence are relatively straightforward: evidence that is offered for the purpose of proving character is inadmissible, subject to a few well-defined exceptions. Despite this relative straightforwardness, many of the federal circuit courts of appeals have overlaid the rules regarding character evidence particularly Rule 404(b)--with unnecessary interpretive …

#Believewomen And The Presumption Of Innocence: Clarifying The Questions For Law And Life, Kimberly Kessler Ferzan

All Faculty Scholarship

The presumption of innocence and #BelieveWomen both embody compelling considerations, and we may wonder how to reconcile them. My project does not aim to reconcile the positions, but rather, it is prior to it. My goal in this paper is to better explicate the claims that underlie both #BelieveWomen and the presumption of innocence in law and life, as well as to identify instances in which cross-pollination, between our everyday evaluations and the legal system, is contaminating our thinking.

First, I begin with #BelieveWomen and sort through various ways to interpret this demand (though my survey is not exhaustive). I …

The Easterbrook Theorem: An Application To Digital Markets, Joshua D. Wright, Murat C. Mungan

Faculty Scholarship

The rise of large firms in the digital economy, including Amazon, Apple, Facebook, and Google, has rekindled the debate about monopolization law. There are proposals to make finding liability easier against alleged digital monopolists by relaxing substantive standards; to flip burdens of proof; and to overturn broad swaths of existing Supreme Court precedent, and even to condemn a law review article. Frank Easterbrook’s seminal 1984 article, The Limits of Antitrust, theorizes that Type I error costs are greater than Type II error costs in the antitrust context, a proposition that has been woven deeply into antitrust law by the Supreme …

Recollections Refreshed And Recorded, Leonard M. Niehoff

Articles

Witnesses forget stuff. When they do, the evidence rules give us two tools to help solve the problem. Lawyers call one "refreshed recollection" and the other "past recollection recorded," labels just similar enough to guarantee confusion. Nevertheless, these principles get at very different things and are well worth the effort necessary to distinguish and understand them.

So how do we get there?

Artificial Intelligence As Evidence, Paul W. Grimm, Maura R. Grossman, Gordon V. Cormack

Faculty Scholarship

This article explores issues that govern the admissibility of Artificial Intelligence (“AI”) applications in civil and criminal cases, from the perspective of a federal trial judge and two computer scientists, one of whom also is an experienced attorney. It provides a detailed yet intelligible discussion of what AI is and how it works, a history of its development, and a description of the wide variety of functions that it is designed to accomplish, stressing that AI applications are ubiquitous, both in the private and public sectors. Applications today include: health care, education, employment-related decision-making, finance, law enforcement, and the legal …

Exposing Police Misconduct In Pre-Trial Criminal Proceedings, Anjelica Hendricks

All Faculty Scholarship

This Article presents a unique argument: police misconduct records should be accessible and applicable for pre-trial criminal proceedings. Unfortunately, the existing narrative on the value of police misconduct records is narrow because it exclusively considers how these records can be used to impeach officer credibility at trial. This focus is limiting for several reasons. First, it addresses too few defendants, since fewer than 3% of criminal cases make it to trial. Second, it overlooks misconduct records not directly addressing credibility—such as records demonstrating paperwork deficiencies, failures to appear in court, and “mistakes” that upon examination are patterns of abuse. Finally, …

Why Illinois Should Reevaluate Its Video Tolling (V-Toll) Subsidy, Randall K. Johnson

Faculty Works

Tolls are levies with a limited base. This base is made up of drivers that pay user fees, in cash or via electronic transponder, in exchange for access to state-administered roads. In Illinois, every single toll is a function of three factors: vehicle characteristics, tollway entry point, and how far a driver goes on state-administered roads.

It is commonly assumed that any toll violation, i.e., any failure to pay, results in a traffic ticket, administrative fees and state-imposed sanctions. Such an assumption, however, is only partly true due to overly forgiving Illinois state policies. Examples include the Traffic Ticket Exemption, …

Power And Statistical Significance In Securities Fraud Litigation, Jill E. Fisch, Jonah B. Gelbach

All Faculty Scholarship

Event studies, a half-century-old approach to measuring the effect of events on stock prices, are now ubiquitous in securities fraud litigation. In determining whether the event study demonstrates a price effect, expert witnesses typically base their conclusion on whether the results are statistically significant at the 95% confidence level, a threshold that is drawn from the academic literature. As a positive matter, this represents a disconnect with legal standards of proof. As a normative matter, it may reduce enforcement of fraud claims because litigation event studies typically involve quite low statistical power even for large-scale frauds.

This paper, written for …

Feigned Consensus: Usurping The Law In Shaken Baby Syndrome/Abusive Head Trauma Prosecutions, Keith A. Findley, D. Michael Risinger, Patrick D. Barnes, Julie A. Mack, David A. Moran, Barry C. Scheck, Thomas L. Bohan

Articles

Few medico-legal matters have generated as much controversy--both in the medical literature and in the courtroom--as Shaken Baby Syndrome (SBS), now known more broadly as Abusive Head Trauma (AHT). The controversies are of enormous significance in the law because child abuse pediatricians claim, on the basis of a few non-specific medical findings supported by a weak and methodologically flawed research base, to be able to “diagnose” child abuse, and thereby to provide all of the evidence necessary to satisfy all of the legal elements for criminal prosecution (or removal of children from their parents). It is a matter, therefore, in …

Dispute Settlement Under The African Continental Free Trade Area Agreement: A Preliminary Assessment, Olabisi D. Akinkugbe

Articles, Book Chapters, & Popular Press

The African Continental Free Trade Area Agreement (AfCFTA) will add a new dispute settlement system to the plethora of judicial mechanisms designed to resolve trade disputes in Africa. Against the discontent of Member States and limited impact the existing highly legalized trade dispute settlement mechanisms have had on regional economic integration in Africa, this paper undertakes a preliminary assessment of the AfCFTA Dispute Settlement Mechanism (DSM). In particular, the paper situates the AfCFTA-DSM in the overall discontent and unsupportive practices of African States with highly legalized dispute settlement systems and similar WTO-Styled DSMs among other shortcomings. Notwithstanding the transplantation of …

The Executive Branch Anticanon, Deborah Pearlstein

Articles

Donald Trump’s presidency has given rise to a raft of concerns not just about the wisdom of particular policy decisions but also about the prospect that executive actions might have troubling longer term “precedential” effects. While critics tend to leave undefined what “precedent” in this context means, existing constitutional structures provide multiple mechanisms by which presidential practice can influence future executive branch conduct: judicial actors rely on practice as gloss on constitutional meaning, executive branch officials rely on past practice in guiding institutional norms of behavior, and elected officials outside the executive branch and the people themselves draw on past …

Incorporating Social Science Into Criminal Defense Practice, Eve Brensike Primus

Articles

In recent decades, social scientists have created a treasure trove of empirical and sociological data that defenders can and should use to help their clients. Evidence rules, criminal law, and criminal procedure are filled with concepts informed by social science. When is evidence likely to unfairly prejudice a defendant in the eyes of a jury? Do police interact differently with members of minority populations and how should that inform concepts of reasonableness? How easy or difficult is it for people to identify individuals they see during high-stress criminal episodes? How effective are police interrogation tactics at getting at the truth …

Professor Jeffrey Bellin: Reflections On The Fall 2020 Semester, Jeffrey Bellin

Law School Personal Reflections on COVID-19

No abstract provided.

Excessive Force: Justice Requires Refining State Qualified Immunity Standards For Negligent Police Officers, Angie Weiss

Seattle University Law Review SUpra

At the time this Note was written, there was no Washington state equivalent of the § 1983 Civil Rights Act. As plaintiffs look to the Washington state courts as an alternative to federal courts, they will find that Washington state has a different structure of qualified immunity protecting law enforcement officers from liability.

In this Note, Angie Weiss recommends changing Washington state's standard of qualified immunity. This change would ensure plaintiffs have a state court path towards justice when they seek to hold law enforcement officers accountable for harm. Weiss explains the structure and context of federal qualified immunity; compares …

Co-Worker Evidence In Court, Sandra F. Sperino

Faculty Publications

This symposium explores ways to empower workers. Many employment laws rely on workers filing private rights of action to enforce the underlying substantive law. Unfortunately, when workers file these claims in court, courts often do not allow them to rely on evidence from their co-workers. While courts regularly allow employers to submit co-worker evidence of a plaintiff's poor performance or lack of qualifications, they often diminish or exclude a plaintiff's co-worker evidence that the plaintiff performed well or possessed desired qualifications. This Article identifies and explores this evidentiary inequality. It argues that efforts to empower workers must include the power …

The Use Of Technical Experts In Software Copyright Cases: Rectifying The Ninth Circuit’S “Nutty” Rule, Shyamkrishna Balganesh, Peter Menell

All Faculty Scholarship

Courts have long been skeptical about the use of expert witnesses in copyright cases. More than four decades ago, and before Congress extended copyright law to protect computer software, the Ninth Circuit in Krofft Television Prods., Inc. v. McDonald’s Corp., ruled that expert testimony was inadmissible to determine whether Mayor McCheese and the merry band of McDonaldland characters infringed copyright protection for Wilhelmina W. Witchiepoo and the other imaginative H.R. Pufnstuf costumed characters. Since the emergence of software copyright infringement cases in the 1980s, substantially all software copyright cases have permitted expert witnesses to aid juries in understanding software …

Evidence, Arrest Circumstances, And Felony Cocaine Case Processing, Jacqueline G. Lee, Alexander Testa

Criminal Justice Faculty Publications and Presentations

Case evidence and situational arrest characteristics are widely speculated to influence courtroom actor decisions, yet such measures are infrequently included in research. Using new data on felony cocaine cases from an urban county in a Southern non-guideline state, this study examines how physical evidence and arrest circumstances affect three stages of case processing: initial charge type, charge reduction, and sentence length. The influence of evidence appeared strongest at the early stage when prosecutors chose the appropriate charge, though certain evidentiary and arrest measures continued to influence later decisions. Charge reductions were driven mostly by legal factors, and while guilt should …