Law Commons^™

"Whodunit" Versus "What Was Done": When To Admit Character Evidence In Criminal Cases, Sherry Colb

Sherry Colb

In virtually every jurisdiction in the United States, the law of evidence prohibits parties from offering proof of an individual's general character traits to suggest that, on a specific occasion, the individual behaved in a manner consistent with those traits. In a criminal trial in particular, the law prohibits a prosecutor's introduction of evidence about the defendant's character as proof of his guilt. In this Article, Professor Colb proposes that the exclusion of defendant character evidence is appropriate in one category of cases but inappropriate in another. In the first category, which Professor Colb calls "whodunit" cases, the parties agree …

Exorcising The Evil Of Forum-Shopping, Kevin Clermont, Theodore Eisenberg

Kevin M. Clermont

Most of the business of litigation comprises pretrial disputes. A common and important dispute is over where adjudication should take place. Civil litigators deal with nearly as many change-of-venue motions as trials. The battle over venue often constitutes the critical issue in a case. The American way is to provide plaintiffs with a wide choice of venues for suit. But the American way has its drawbacks. To counter these drawbacks, an integral part of our court systems, and in particular the federal court system, is the scheme of transfer of venue "in the interest of justice." However, the leading evaluative …

How Employment-Discrimination Plaintiffs Fare In The Federal Courts Of Appeals, Kevin Clermont, Theodore Eisenberg, Stewart Schwab

Kevin M. Clermont

Employment-discrimination plaintiffs swim against the tide. Compared to the typical plaintiff, they win a lower proportion of cases during pretrial and after trial. Then, many of their successful cases are appealed. On appeal, they have a harder time in upholding their successes, as well in reversing adverse outcome. This tough story does not describe some tiny corner of the litigation world. Employment-discrimination cases constitute an increasing fraction of the federal civil docket, now reigning as the largest single category of cases at nearly 10 percent. In this article, we use official government data to describe the appellate phase of this …

Trial By Jury Or Judge: Which Is Speedier?, Theodore Eisenberg, Kevin Clermont

Kevin M. Clermont

Many take as a given that jury-tried cases consume more time than judge-tried cases. Judge Richard Posner of the Seventh Circuit, for example, opines: “Court queues are almost always greatest for parties seeking civil jury trials. This makes economic sense. Such trials are more costly than bench trials both because of jury fees (which … understate the true social costs of the jury) and because a case normally takes longer to try to a jury than to a judge …. Parties are therefore “charged” more for jury trials by being made to wait in line longer.” A close reading reveals …

Foreigners' Fate In America's Courts: Empirical Legal Research, Kevin Clermont, Theodore Eisenberg

Kevin M. Clermont

This article revisits the controversy regarding how foreigners fare in U.S. courts. The available data, if taken in a sufficiently big sample from numerous case categories and a range of years, indicate that foreigners have fared better in the federal courts than their domestic counterparts have fared. Thus, the data offer no support for the existence of xenophobic bias in U.S. courts. Nor do they establish xenophilia, of course. What the data do show is that case selection drives the outcomes for foreigners. Foreigners’ aversion to U.S. forums can elevate the foreigners’ success rates, when measured as a percentage of …

Unwell: Indiana V. Edwards And The Plight Of Mentally Ill Pro Se Defendants, John Blume, Morgan Clark

John H. Blume

Natural Disasters, Climate Change And Non-Refoulement: What Scope For Resisting Expulsion Under Articles 3 And 8 Of The European Convention On Human Rights?, Matthew Scott

Matthew Scott

Climate change is already contributing to the displacement of millions of people worldwide as extreme weather events become increasingly frequent and intense. Proposals for responding to the phenomenon of climate change-related displacement overwhelmingly rely on the state to act, with limited discussion of the potential to determine and develop the scope of protection through strategic litigation. This article considers the current and potential scope of protection under articles 3 and 8 of the European Convention on Human Rights (ECHR) from a strategic litigation perspective. Individuals facing expulsion from a European host state to a receiving state during or in the …

Transnational Litigation, Mahdev Mohan

Mahdev Mohan

In 2013, the United States Supreme Court held that it had no jurisdiction to hear a case relating to conduct which occurred outside U.S. territory, and that concerned a suit brought against a company based outside the U.S. Today referred to as the ‘Kiobel decision’, it represents a significant shift of the aperture of transnational corporate accountability away from the U.S. – which generally has been the default venue – and towards regional and foreign jurisdictions where violations occur, or where responsible beneficiaries of the wrongdoings reside or conduct their businesses.

Mahdev Mohan, an Assistant Professor of Law at the …