Law Commons^™

The Promise And Pitfalls Of Empiricism In Educational Equality Jurisprudence, Lia Epperson

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Modernizing Jury Instructions In The Age Of Social Media, David Aaronson, Sydney Patterson

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Five Answers And Three Questions After United States V. Jones (2012), The Fourth Amendment Gps Case, Benjamin Priester

Journal Publications

Each year, the United States Supreme Court's docket includes a range of "high profile" cases that attract attention not merely from law professors and others with an acquired fascination with the Court, but also from a general audience of law students, lawyers, scholars and commentators on American politics and society, as well as, occasionally, the public at large. During the 2011 Term, one of those cases was "the GPS case," formally known as United States v. Jones.' Media coverage of the case spread far beyond the legal blogosphere to a wide variety of mainstream and popular sources, both in print …

Empirical Fallacies Of Evidence Law: A Critical Look At The Admission Of Prior Sex Crimes, Tamara Rice Lave, Aviva Orenstein

Articles

In a significant break with traditional evidence rules and policies, Federal Rules of Evidence 413-414 allow jurors to use the accused's prior sexual misconduct as evidence of character and propensity to commit the sex crime charged. As reflected in their legislative history, these propensity rules rest on the assumption that sexual predators represent a small number of highly deviant and recidivistic offenders. This view of who commits sex crimes justified the passage of the sex-crime propensity rules and continues to influence their continuing adoption among the states and the way courts assess such evidence under Rule 403. In depending on …

Visual Jurisprudence, Richard Sherwin

Articles & Chapters

Lawyers, judges, and jurors face a vast array of visual evidence and visual argument inside the contemporary courtroom. From videos documenting crimes and accidents to computer displays of their digital simulation, increasingly, the search for fact-based justice is becoming an offshoot of visual meaning making. But when law migrates to the screen it lives there as other images do, motivating belief and judgment on the basis of visual delight and unconscious fantasies and desires as well as actualities. Law as image also shares broader cultural anxieties concerning not only the truth of the image, but also the mimetic capacity itself, …

Reconceptualizing The Burden Of Proof, Edward K. Cheng

Vanderbilt Law School Faculty Publications

The preponderance standard is conventionally described as an absolute probability threshold of 0.5. This Essay argues that this absolute characterization of the burden of proof is wrong. Rather than focusing on an absolute threshold, the Essay reconceptualizes the preponderance standard as a probability ratio and shows how doing so eliminates many of the classical problems associated with probabilistic theories of evidence. Using probability ratios eliminates the so-called Conjunction Paradox, and developing the ratio tests under a Bayesian perspective further explains the Blue Bus problem and other puzzles surrounding statistical evidence. By harmonizing probabilistic theories of proof with recent critiques advocating …

Speaking Science To Law, Deborah Hussey Freeland

Deborah M. Hussey Freeland

involving a strong scientific consensus, the powerful qualities of scientific knowledge are easily lost in translation. Moreover, even prominent scientists who are committed to providing accurate information to legal fact-finders may suffer reputational harm simply for participating in an adversarial process.

This article analyzes the connection between law and science through the expert witness from the perspectives of epistemology and cross-cultural communication, focusing on the distinct ways in which scientists and lawyers know, value and express their knowledge. When a lawyer meets with a scientific expert witness, more confusion attends their interaction than either likely realizes. Linguistic translation is necessary--but …

Brain Trauma, Pet Scans And Forensic Complexity, Jane Moriarty, Daniel Langleben, James Provenzale

Jane Campbell Moriarty

Positron Emission Tomography (PET) is a medical imaging technique that can be used to show brain function. Courts have admitted PET scan evidence in cases involving brain damage, injury, toxic exposure, or illness ("brain trauma") and to support claims of diminished cognitive abilities and impulse control. Despite the limited data on the relationships between PET, brain trauma and behavior, many courts admit PET scan evidence without much critical analysis. This article examines the use of PET as proof of functional impairment and justification of abnormal behavior by explaining its diagnostic use and limitations, the limited support for claims of its …

Evidence, Probability, And The Burden Of Proof, Ronald J. Allen, Alex Stein

Alex Stein

This Article analyzes the probabilistic and epistemological underpinnings of the burden-of-proof doctrine. We show that this doctrine is best understood as instructing factfinders to determine which of the parties’ conflicting stories makes most sense in terms of coherence, consilience, causality, and evidential coverage. By applying this method, factfinders should try—and will often succeed—to establish the truth, rather than a statistical surrogate of the truth, while securing the appropriate allocation of the risk of error. Descriptively, we argue that this understanding of the doctrine—the “relative plausibility theory”—corresponds to our courts’ practice. Prescriptively, we argue that the relative-plausibility method is operationally superior …

The Nursing Standard Of Care In Illinois: Rethinking The Wingo Exception In The Wake Of Sullivan V. Edward Hospital, Emily Chase-Sosnoff

Chicago-Kent Law Review

This note analyzes the current circuit split among Illinois courts over whether the same-license requirement for medical expert testimony applies to testimony about the standard of care for nurse-doctor communications. Part I traces the history of the problem by explaining the original same-license requirement, the Wingo exception for nurse-doctor communications, and the Illinois Supreme Court's decision in Sullivan, which cast doubt on Wingo's continued survival. Part II illustrates the nature of the circuit split by describing the lower courts' three distinct interpretations of Sullivan. Finally, Part III argues that courts should apply Sullivan strictly and abandon the Wingo exception because …

Can Law And Literature Be Practical? The Crucible And The Federal Rules Of Evidence, Martin H. Pritikin

West Virginia Law Review

Counter-intuitively, one of the best ways to learn the practice-oriented topic of evidence may be by studying a work of fiction-specifically, Arthur Miller's The Crucible, which dramatizes the seventeenth-century Salem witch trials. The play puts the reader in the position of legal advocate, and invites strategic analysis of evidentiary issues. A close analysis of the dialogue presents an opportunity to explore both the doctrinal nuances of and policy considerations underlying the most important topics covered by the Federal Rules of Evidence, including the mode and order of interrogation, relevance, character evidence and impeachment, opinion testimony, and hearsay.

Adult Survivors Of Childhood Sexual Abuse And The Statute Of Limitations: The Need For Consistent Application Of The Delayed Discovery Rule, Gregory G. Gordon

Pepperdine Law Review

No abstract provided.

Psychotherapist And Patient In The California Supreme Court: Ground Lost And Ground Regained, Stanley Mosk

Pepperdine Law Review

No abstract provided.

Victim Harm, Retributivism And Capital Punishment: A Philosophy Critique Of Payne V. Tennessee , R. P. Peerenboom

Pepperdine Law Review

No abstract provided.

Scientific Evidence In The Age Of Daubert: A Proposal For A Dual Standard Of Admissibility In Civil And Criminal Cases , William P. Haney Iii

Pepperdine Law Review

No abstract provided.

Impeachment Methods Illustrated: Movies, Novels, And High Profile Cases, Martin A. Schwartz, John Nicodemo

Martin A. Schwartz

No abstract provided.

Trial Evidence 2011: Advocacy, Analysis, & Illustrations, Martin A. Schwartz, Deborah Jones Merritt, William G. Young

Martin A. Schwartz

No abstract provided.

State Searches, Federal Cases, And Choice Of Law: Just A Little Respect, John B. Corr

Pepperdine Law Review

No abstract provided.

It Is Broken: Breaking The Inertia Of The Exclusionary Rule, L. Timothy Perrin, H. Mitchell Caldwell, Carol A. Chase

Pepperdine Law Review

No abstract provided.

The Optimum Remedy For Constitutional Breaches: Multiaccessed Civil Penalties In Equity, Robert C. Fellmeth

Pepperdine Law Review

No abstract provided.

The Exclusionary Rule: Fix It, But Fix It Right - A Critique Of If It's Broken, Fix It: Moving Beyond The Exclusionary Rule, Gregory D. Totten, Peter D. Kossoris, Ebbe B. Ebbesen

Pepperdine Law Review

No abstract provided.

Administrative Replacements: How Much Can They Do?, Laurie L. Levenson

Pepperdine Law Review

No abstract provided.

How To Move Beyond The Exclusionary Rule: Structuring Judicial Response To Legislative Reform Efforts, Harold J. Krent

Pepperdine Law Review

No abstract provided.

Judicial Review And The Exclusionary Rule, Morgan Cloud

Pepperdine Law Review

No abstract provided.

The Importance Of Being Empirical, Michael Heise

Pepperdine Law Review

Legal scholarship is becoming increasingly empirical. Although empirical methodologies gain important influence within the legal academy, their application in legal research remains underdeveloped. This paper surveys and analyzes the state of empirical legal scholarship and explores possible influences on its production. The paper advances a normative argument for increased empirical legal scholarship.

Moving Further Beyond, Thomas M. Reavley

Pepperdine Law Review

No abstract provided.

An Invitation To Dialogue: Exploring The Pepperdine Proposal To Move Beyond The Exclusionary Rule, L. Timothy Perrin, H. Mitchell Caldwell, Carol A. Chase

Pepperdine Law Review

No abstract provided.

Substance And Method In The Year 2000, Akhil Reed Amar

Pepperdine Law Review

No abstract provided.

Law Enforcement And Criminal Law Decisions, Erwin Chemerinsky

Pepperdine Law Review

No abstract provided.

Experience-Based Opinion Testimony: Strengthening The Lay Opinion Rule , Anne Bowen Poulin

Pepperdine Law Review

Determining whether experience-based opinion should be evaluated as lay or as expert opinion has proven particularly challenging to the courts. The Federal Rules of Evidence were amended in 2000, adopting specific, more stringent requirements for expert testimony and hardening the line between lay and expert opinion. Expert opinion testimony is admissible only if based on reliable methodology, whereas lay opinion must be rationally derived using everyday reasoning. The decisions applying the rules do not strike the right balance in regard to experience-based opinion. Too often, courts either accept claims of experience-based expertise at face value or admit experience-based opinion as …