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Full-Text Articles in Law
Race, Gatekeeping, Magical Words, And The Rules Of Evidence, I. Bennett Capers
Race, Gatekeeping, Magical Words, And The Rules Of Evidence, I. Bennett Capers
Faculty Scholarship
Although it might not be apparent from the Federal Rules of Evidence themselves, or the common law that preceded them, there is a long history in this country of tying evidence—what is deemed relevant, what is deemed trustworthy—to race. And increasingly, evidence scholars are excavating that history. Indeed, not just excavating, but showing how that history has racial effects that continue into the present.
One area that has escaped racialized scrutiny—at least of the type I am interested in—is that of expert testimony. In this brief Essay written for the Vanderbilt Law Review Symposium, Reimagining the Rules of Evidence at …
Proving Copying, Shyamkrishna Balganesh, Peter S. Menell
Proving Copying, Shyamkrishna Balganesh, Peter S. Menell
Faculty Scholarship
Proof that a defendant actually copied from a copyrighted work is a critical part of a claim for copyright infringement. Indeed, absent such copying, there is no infringement. The most common method of proving copying involves the use of circumstantial evidence, consisting of proof that a defendant had “access” to the protected work, and a showing of “similarities” between the copy and the protected work. In inferring copying from the combination of such evidence, courts have for many decades developed a framework known as the “inverse ratio rule,” which allows them to modulate the level of proof needed on access …
Conference On Best Practices For Managing Daubert Questions, Daniel J. Capra, David G. Campbell, Debra A. Livingston, James P. Bassett, Shelly Dick, Traci L. Lovitt, Thomas Marten, Kathryn N. Nester, Thomas D. Schroeder, Elizabeth J. Shapiro, Timothy Lau, Vince Chhabria, John Z. Lee, William H. Orrick Iii, Edmund A. Sargus Jr., Sarah A. Vance, Edward K. Cheng
Conference On Best Practices For Managing Daubert Questions, Daniel J. Capra, David G. Campbell, Debra A. Livingston, James P. Bassett, Shelly Dick, Traci L. Lovitt, Thomas Marten, Kathryn N. Nester, Thomas D. Schroeder, Elizabeth J. Shapiro, Timothy Lau, Vince Chhabria, John Z. Lee, William H. Orrick Iii, Edmund A. Sargus Jr., Sarah A. Vance, Edward K. Cheng
Faculty Scholarship
This article is a transcript of the Philip D. Reed Lecture Series Conference on Best Practices for Managing Daubert Questions, held on October 25, 2019, at Vanderbilt Law School under the sponsorship of the Judicial Conference Advisory Committee on Evidence Rules. The transcript has been lightly edited and represents the panelists’ individual views only and in no way reflects those of their affiliated firms, organizations, law schools, or the judiciary.
The Effect Of Blinded Experts On Jurors’ Verdicts, Christopher Robertson
The Effect Of Blinded Experts On Jurors’ Verdicts, Christopher Robertson
Faculty Scholarship
“Blind expertise” has been proposed as an institutional solution to the problem of bias in expert witness testimony in litigation, as a way to improve litigation outcomes. At the request of a litigant, an intermediary selects a qualified expert and pays the expert to review a case without knowing which side requested the opinion. This paper reports an experiment that tests the hypothesis that, compared to traditional experts, such “blinded experts” will be more persuasive to jurors. A national sample of mock jurors (N = 275) watched an online video of a staged medical malpractice trial, including testimony from two …
The Other Shoe Drops: Minnesota Rejects Daubert, Peter B. Knapp
The Other Shoe Drops: Minnesota Rejects Daubert, Peter B. Knapp
Faculty Scholarship
In 1991, the United States Supreme Court handed decided Daubert v. Merrell Dow Pharmaceuticals, Inc., rejecting the long-standing federal test for the admissibility of scientific testimony articulated in Frye v. United States. Unlike many states, however, which embraced Daubert within years--or even months--of the federal decision, Minnesota declined to make Daubert the law of the jurisdiction. In a pair of cases decided in 2000, Goeb v. Tharaldson and Sentinel Mgmt. v. Aetna Casualty & Surety, the court held that Minnesota would retain the general acceptance test. The court's rejection of Daubert can be read as an attempt to give the …
Conflicts Of Interest In Scientific Expert Testimony, Mark R. Patterson
Conflicts Of Interest In Scientific Expert Testimony, Mark R. Patterson
Faculty Scholarship
Conflicts of interest have significant implications for the reliability of scientific expert testimony. However, the courts' treatment of conflicts is not always in accord either with the treatment of conflicts in scientific practice or with the particular problems that scientists' conflicts present in court. In response, this Article proposes two basic changes in the treatment of scientific expert testimony. First, courts should strive to separate issues of bias from issues of scientific validity-the two sets of issues are now conflated at times. Second, courts should pay more attention to biases of scientists who perform the research underlying expert testimony, whereas …
When Death Is The Issue: Uses Of Pathological Testimony And Autopsy Reports At Trial, J. Thomas Sullivan
When Death Is The Issue: Uses Of Pathological Testimony And Autopsy Reports At Trial, J. Thomas Sullivan
Faculty Scholarship
No abstract provided.
Uncertain Rule Of Certainty: An Analysis And Proposal For A Federal Evidence Rule, The , Michael M. Martin
Uncertain Rule Of Certainty: An Analysis And Proposal For A Federal Evidence Rule, The , Michael M. Martin
Faculty Scholarship
Two characteristic principles of Anglo-American evidence law are the requirement that witnesses testify only to their personal observations (the "first-hand knowledge" rule) and the prohibition against witnesses testifying to their inferences (the "opinion" rule). However, a longstanding exception to these principles permits witnesses possessed of skill or learning to draw inferences, often from facts they have not personally observed. Because such expert opinion testimony is exceptional, it is hedged about with various restrictions in addition to those such as relevancy which apply to all testimony. The predicate for admission of expert opinion testimony generally consists of two elements. First, the …
Recent Developments In Eminent Domain In Arkansas, Robert R. Wright
Recent Developments In Eminent Domain In Arkansas, Robert R. Wright
Faculty Scholarship
No abstract provided.