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Confrontation And Forensic Laboratory Reports, Round Four, Richard D. Friedman
Confrontation And Forensic Laboratory Reports, Round Four, Richard D. Friedman
Articles
Crawford v. Washington radically transformed the doctrine governing the Confrontation Clause of the Sixth Amendment to the Constitution. Before Crawford, a prosecutor could introduce against an accused evidence of a hearsay statement, even one made in contemplation that it would be used in prosecution, so long as the statement fit within a "firmly rooted" hearsay exception or the court otherwise determined that the statement was sufficiently reliable to warrant admissibility. Crawford recognized that the Clause is a procedural guarantee, governing the manner in which prosecution witnesses give their testimony. Therefore, a prosecutor may not introduce a statement that is testimonial …
Mandatory Arbitration: Why It's Better Than It Looks, Theodore J. St. Antoine
Mandatory Arbitration: Why It's Better Than It Looks, Theodore J. St. Antoine
Articles
"Mandatory arbitration" as used here means that employees must agree as a condition of employment to arbitrate all legal disputes with their employer, including statutory claims, rather than take them to court. The Supreme Court has upheld the validity of such agreements on the grounds that they merely provide for a change of forum and not a loss of substantive rights. Opponents contend this wrongfully deprives employees of the right to a jury trial and other statutory procedural benefits. Various empirical studies indicate, however, that employees similarly situated do about as well in arbitration as in court actions, or even …
Free-Standing Due Process And Criminal Procedure: The Supreme Court's Search For Interpretive Guidelines, Jerold H. Israel
Free-Standing Due Process And Criminal Procedure: The Supreme Court's Search For Interpretive Guidelines, Jerold H. Israel
Articles
When I was first introduced to the constitutional regulation of criminal procedure in the mid-1950s, a single issue dominated the field: To what extent did the due process clause of the Fourteenth Amendment impose upon states the same constitutional restraints that the Fourth, Fifth, Sixth and Eighth Amendments imposed upon the federal government? While those Bill of Rights provisions, as even then construed, imposed a broad range of constitutional restraints upon the federal criminal justice system, the federal system was (and still is) minuscule as compared to the combined systems of the fifty states. With the Bill of Rights provisions …
Gilmer In The Collective Bargaining Context, Theodore J. St. Antoine
Gilmer In The Collective Bargaining Context, Theodore J. St. Antoine
Articles
Can a privately negotiated arbitration agreement deprive employees of the statutory right to sue in court on claims of discrimination in employment because of race, sex, religion, age, disability, and similar grounds prohibited by federal law? Two leading U.S. Supreme Court decisions, decided almost two decades apart, reached substantially different answers to this questionand arguably stood logic on its head in the process. In the earlier case of Alexander v. Gardner-Denver Co., involving arbitration under a collective bargaining agreement, the Court held an adverse award did not preclude a subsequent federal court action by the black grievant alleging racial discrimination. …
The Changing Role Of Labor Arbitration (Symposium: New Rules For A New Game: Regulating Employment Relationships In The 21st Century), Theodore J. St. Antoine
The Changing Role Of Labor Arbitration (Symposium: New Rules For A New Game: Regulating Employment Relationships In The 21st Century), Theodore J. St. Antoine
Articles
A quarter century ago, in a provocative and prophetic article, David E. Feller lamented the imminent close of what he described as labor arbitration's "golden age." I have expressed reservations about that characterization, insofar as it suggested an impending shrinkage in the stature of arbitration. But Professor Feller was right on target in one important respect. Labor arbitration was going to change dramatically from the autonomous institution in the relatively self-contained world of union-management relations which it had been from the end of World War II into the 1970s. When the subject matter was largely confined to union-employer agreements, arbitration …
Uncoupling The Law Of Takings, Michael A. Heller, James E. Krier
Uncoupling The Law Of Takings, Michael A. Heller, James E. Krier
Articles
The law of takings couples together matters that should be treated independently. The conventional view, shared by courts and commentators alike, has been that any takings case can be resolved in one of two ways: either there is a taking and compensation is due, or there is no taking and no compensation is due. These results are fine as long as one holding or the other serves the two central concerns of the Takings Clause - eficiency and justice. But a problem arises when the two purposes behind the law of takings come into cordhct, as they readily might. It …
Making Something Out Of Nothing: The Law Of Takings And Phillips V. Washington Legal Foundation, Michael A. Heller, James E. Krier
Making Something Out Of Nothing: The Law Of Takings And Phillips V. Washington Legal Foundation, Michael A. Heller, James E. Krier
Articles
Phillips v. Washington Legal Foundation held that interest on principal amounts deposited into IOLTA accounts is the property of the various clients who handed over the money but expressed no view as to whether the Texas IOLTA program worked a taking, or, if it did, whether any compensation was due. The debates among the justices about the meaning of private property, argued in terms of contextual and conceptual severance, are unlikely to prove fruitful. We elaborate a better approach in terms of the underlying purposes of just compensation. We conclude that efficiency and justice are best served by uncoupling matters …
Deterrence And Distribution In The Law Of Takings, Michael A. Heller, James E. Krier
Deterrence And Distribution In The Law Of Takings, Michael A. Heller, James E. Krier
Articles
Supreme Court decisions over the last three-quarters of a century have turned the words of the Takings Clause into a secret code that only a momentary majority of the Court is able to understand. The Justices faithfully moor their opinions to the particular terms of the Fifth Amendment, but only by stretching the text beyond recognition. A better approach is to consider the purposes of the Takings Clause, efficiency and justice, and go anew from there. Such a method reveals that in some cases there are good reasons to require payment by the government when it regulates property, but not …
Truth And Its Rivals In The Law Of Hearsay And Confrontation (Symposium: Truth And Its Rivals: Evidence Reform And The Goals Of Evidence Law)." , Richard D. Friedman
Truth And Its Rivals In The Law Of Hearsay And Confrontation (Symposium: Truth And Its Rivals: Evidence Reform And The Goals Of Evidence Law)." , Richard D. Friedman
Articles
In this paper, I will look at the problem of hearsay and confrontation through the lens offered by this symposium's theme of "truth and its rivals." I will ask: To what extent does the law of hearsay and confrontation aspire to achieve the goal of truth in litigation? To what extent does it, or should it, seek to achieve other goals, or to satisfy other constraints on the litigation system? And, given the ends that it seeks to achieve, what should the shape of the law in this area be? My principal conclusions are as follows: In most settings, the …
Asymmetrical Peremptories Defended: A Reply, Richard D. Friedman
Asymmetrical Peremptories Defended: A Reply, Richard D. Friedman
Articles
Three years ago, with the publication of his article ''An Asymmetrical Approach to the Problem of Peremptories" in this journal, Professor Friedman initiated a debate on the subject that was taken up in 1994 by three prosecutors who offered a rebuttal that was also printed in these pages. Professor Friedman continues the debate.
An Asymmetrical Approach To The Problem Of Peremptories?, Richard D. Friedman
An Asymmetrical Approach To The Problem Of Peremptories?, Richard D. Friedman
Articles
The Supreme Court's decision in Batson v. Kentucky, and the extension of Batson to parties other than prosecutors, may be expected to put pressure on the institution of peremptory challenges. After a brief review of the history of peremptories, this article contends that peremptories for criminal defendants serve important values of our criminal justice system. It then argues that peremptories for prosecutors are not as important, and that it may no longer be worthwhile to maintain them in light of the administrative complexities inevitable in a system of peremptories consistent with Batson. The article concludes that the asymmetry of allowing …
Judicial Protection Of Minorities, Terrance Sandalow
Judicial Protection Of Minorities, Terrance Sandalow
Articles
In United States v. Carolene Products Co., Justice Stone suggested by indirection that there "may be narrower scope for operation of the presumption of constitutionality" when courts are called upon to determine the validity "of statutes directed at particular religious . . . or national . . . or racial minorities."' In such cases, he explained, "prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry."' Forty years later, …