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Articles 1 - 11 of 11
Full-Text Articles in Law
Pragmatism Applied: Imagining A Solution To The Problem Of Court Congestion, Michael L. Seigel
Pragmatism Applied: Imagining A Solution To The Problem Of Court Congestion, Michael L. Seigel
Michael L Seigel
Can we improve the efficiency of jury trials? If so, would this reduce the problem of court congestion? Is there any reason to favor this approach over those that seek to avoid jury trials altogether? This Article attempts to answer these difficult questions. It does so by articulating and then employing a methodology suggested by recent scholarly ruminations about the philosophy of pragmatism and its implications for legal scholarship and practice. Although pragmatism does not provide "right answers" to questions of legal doctrine-indeed, it rejects the notion that such things exist-it does provide some guidance in formulating the search for …
Prosecuting Martha: Federal Prosecutorial Power And The Need For A Law Of Counts, Michael L. Seigel, Christopher Slobogin
Prosecuting Martha: Federal Prosecutorial Power And The Need For A Law Of Counts, Michael L. Seigel, Christopher Slobogin
Michael L Seigel
Martha Stewart's case illustrates a wide variety of prosecutorial decision-making. We have defended the U.S. Attorney's decision to investigate and prosecute Stewart, but called into question the further decision to charge her with five counts. As a way of curtailing the redundant charging phenomenon, which is widespread, we have suggested that the courts develop a law of counts to cabin prosecutorial charging discretion. Thus, our proposal to create a law of counts would not require prosecutors to act against their short- or long-term interests. Rather, it would be implemented by judges using the interpretive method, without going so far as …
Effective Use Of War Stories In Teaching Evidence, Michael L. Seigel
Effective Use Of War Stories In Teaching Evidence, Michael L. Seigel
Michael L Seigel
There are many ways to teach any law course successfully, including Evidence. It can be approached from a very theoretical perspective or a very practical one. Some professors still use the tried and true case method, while others have moved more toward a problem-oriented approach. Others use movie clips to illustrate important points. A minority of professors have even adopted a NITA approach, essentially teaching Evidence through Trial Practice. This Essay does not advocate any particular method for teaching Evidence. It does take the position, however, that if an Evidence professor has some practical experience, he or she would be …
Bringing Coherence To Mens Rea Analysis For Securities-Related Offenses, Michael L. Seigel
Bringing Coherence To Mens Rea Analysis For Securities-Related Offenses, Michael L. Seigel
Michael L Seigel
This Article has demonstrated that the failure of commentators and the courts to tackle mens rea analysis head-on has resulted in lasting incoherence in the law. Unintelligible legal doctrine does not simply upset individuals who strive for elegant solutions to legal problems; it also exacts a huge, real-life toll. Juries faced with incoherent legal instructions are likely to become disillusioned about the justice system. Citizens receive inadequate guidance as to acceptable and unacceptable behavior, hampering deterrence -- particularly in the securities-law arena, where one presumably finds mostly rational actors who would be deterred by clear legal rules. Securities regulation is …
Rethinking Adversariness In Nonjury Criminal Trials, Sean Doran, John D. Jackson, Michael L. Seigel
Rethinking Adversariness In Nonjury Criminal Trials, Sean Doran, John D. Jackson, Michael L. Seigel
Michael L Seigel
This Article argues that when the jury is withdrawn from the common law criminal trial, the accused suffers an adversarial deficit. This deficit occurs because many of the procedural devices built into the trial process -- particularly those designed to provide the defendant with a meaningful opportunity to contest the case against him and to ensure that any determination of guilt is based solely on the evidence adduced in the courtroom -- are predicated on the existence of a decision-making body that comes "cold" to the contest, devoid of extraneous knowledge concerning the facts of the case or the relevant …
A Pragmatic Critique Of Modern Evidence Scholarship, Michael L. Seigel
A Pragmatic Critique Of Modern Evidence Scholarship, Michael L. Seigel
Michael L Seigel
This Article contends that strict adherence to optimistic rationalism has blinded evidence scholars to the reality that the law of evidence is as indeterminate as all other areas of the law. At its core is not a single goal -- the attainment of truth -- but a number of important, complex, and, alas, competing considerations. Answers to questions concerning the appropriate configuration of evidence doctrine cannot be deduced from a unitary principle; indeed, they cannot be deduced at all. Rather, arguments about evidence doctrine must be conducted in the realm of "practical reason." Practical reason is the process through which …
On Collegiality, Michael L. Seigel
On Collegiality, Michael L. Seigel
Michael L Seigel
The problem of collegiality in academia is like a crazy aunt in the family: ever present, whispered about in hallways, but rarely acknowledged directly. My goal in this article has been to initiate the demise of this pattern of unhappy toleration. The toleration stems, in large part, from an apparently widespread fear that attempts to control colleagues' uncollegial conduct will result in an unacceptable diminution of academic freedom. Although these concerns are legitimate, I have sought to prove that, if appropriate care is taken, academic freedom may flourish at the same time that a norm of basic collegiality is enforced. …
Some Preliminary Statistical, Qualitative, And Anecdotal Findings Of An Empirical Study Of Collegiality Among Law Professors, Michael L. Seigel, Kathi Minor-Rubino
Some Preliminary Statistical, Qualitative, And Anecdotal Findings Of An Empirical Study Of Collegiality Among Law Professors, Michael L. Seigel, Kathi Minor-Rubino
Michael L Seigel
In advance of a sophisticated analysis of the survey data, one must be very careful in drawing any overall conclusions about the state of collegiality and workplace well-being in legal academia. Certainly, no correlative assertions can be made. Nevertheless, this preliminary review has revealed some noteworthy information. Certainly, law faculties are far from perfectly collegial associations, and many if not most law professors have a gripe of one sort or another. Despite these facts, however, the overwhelming majority of faculty members appear to be happy with their choice of career. The qualitative data also leaves one with the impression that, …
Admissibility Of Co-Conspirator Statements In A Post-Crawford World, Michael L. Seigel, Daniel Weisman
Admissibility Of Co-Conspirator Statements In A Post-Crawford World, Michael L. Seigel, Daniel Weisman
Michael L Seigel
This Article takes the position that co-conspirator statements must be examined on a case-by-case basis to determine whether they are testimonial and thus subject to exclusion under the Confrontation Clause. Further, in light of the fact that the author of the majority opinions in Crawford and Davis was Justice Antonin Scalia, this Article examines whether interpreting the Sixth Amendment as a bar to the admission of certain coconspirator statements would violate an originalist interpretation of that provision. The conclusion reached is that it would not. In the current era of ever-narrowing rights for criminal defendants, reaffirming the law's commitment to …
Corporate America Fights Back: The Battle Over Waiver Of The Attorney-Client Privilege, Michael L. Seigel
Corporate America Fights Back: The Battle Over Waiver Of The Attorney-Client Privilege, Michael L. Seigel
Michael L Seigel
This Article addresses a topic that is the subject of an on-going and heated contest between the business lobby and its lawyers, on the one side, and the U.S. Department of Justice on the other. The fight is over federal prosecutors' escalating practice of requesting that corporations accused of criminal wrongdoing waive their attorney-client privilege as part of their cooperation with the government. The Department of Justice views privilege waiver as a legitimate and critical tool in its post-Enron battle against white collar crime. The business lobby views it as encroaching on corporations' fundamental right to protect confidential attorney-client communications. …
An Unsettling Outcome: Why The Florida Supreme Court Was Wrong To Ban All Settlement Evidence In Saleeby V Rocky Elson Construction, Inc., 3 So. 3d 1078 (Fla. 2009), Michael L. Seigel, Robert J. Hauser, Allison D. Sirica
An Unsettling Outcome: Why The Florida Supreme Court Was Wrong To Ban All Settlement Evidence In Saleeby V Rocky Elson Construction, Inc., 3 So. 3d 1078 (Fla. 2009), Michael L. Seigel, Robert J. Hauser, Allison D. Sirica
Michael L Seigel
It is rare that a court as sophisticated as the Florida Supreme Court casually makes a fundamental mistake in an important area of the law. Unfortunately, Saleeby v. Rocky Elson Construction, Inc., 3 So. 3d 1078 (Fla. 2009) represents one of these unusual instances. The Court was faced with a simple question: may evidence pertaining to a prior settlement be offered at trial when it is relevant to something other than liability or the invalidity or amount of the pending claim. The universal answer under both federal law and the law of other states is yes, as long as the …