Open Access. Powered by Scholars. Published by Universities.®
- Institution
-
- University of Michigan Law School (188)
- Case Western Reserve University School of Law (95)
- University of Colorado Law School (73)
- Cornell University Law School (67)
- William & Mary Law School (64)
-
- University of Nevada, Las Vegas -- William S. Boyd School of Law (55)
- UC Law SF (52)
- American University Washington College of Law (46)
- Duke Law (43)
- Penn State Law (43)
- Georgetown University Law Center (38)
- Vanderbilt University Law School (38)
- University of Georgia School of Law (37)
- University of Pennsylvania Carey Law School (37)
- Brooklyn Law School (34)
- Maurer School of Law: Indiana University (34)
- University of Baltimore Law (34)
- Boston University School of Law (33)
- Washington and Lee University School of Law (27)
- University of Montana (26)
- University of Miami Law School (24)
- University of Washington School of Law (24)
- New York Law School (23)
- University of Kentucky (23)
- Santa Clara Law (20)
- Florida State University College of Law (19)
- Fordham Law School (19)
- University of Missouri-Kansas City School of Law (19)
- Golden Gate University School of Law (18)
- UIC School of Law (18)
- Keyword
-
- Evidence (473)
- Litigation (94)
- Hearsay (92)
- Testimony (89)
- Witnesses (85)
-
- Admissibility (72)
- United States Supreme Court (72)
- Federal Rules of Evidence (68)
- Confrontation Clause (58)
- Criminal law (54)
- Expert testimony (52)
- Sixth Amendment (47)
- Cross-examination (46)
- Scientific evidence (46)
- Police (42)
- Discovery (38)
- Juries (37)
- Exclusionary rule (35)
- Criminal procedure (34)
- Criminal Law (33)
- Expert evidence (33)
- Evidence law (30)
- Trials (30)
- Fourth Amendment (29)
- Law (28)
- Crawford v. Washington (27)
- Expert witnesses (27)
- Probability (24)
- Confessions (22)
- Privacy (22)
- Publication Year
- Publication
-
- Faculty Scholarship (244)
- Articles (218)
- Faculty Publications (184)
- All Faculty Scholarship (93)
- Cornell Law Faculty Publications (66)
-
- Journal Articles (55)
- Scholarly Works (51)
- Publications (50)
- Nevada Supreme Court Summaries (48)
- Articles in Law Reviews & Other Academic Journals (38)
- Vanderbilt Law School Faculty Publications (38)
- Georgetown Law Faculty Publications and Other Works (35)
- Articles by Maurer Faculty (34)
- Book Chapters (25)
- Faculty Journal Articles & Other Writings (22)
- Articles & Chapters (21)
- Law Faculty Scholarly Articles (20)
- Rosetta Stone v. Google (Joint Appendix) (20)
- Faculty Works (19)
- Scholarly Publications (19)
- UIC Law Open Access Faculty Scholarship (18)
- Groundwater: Allocation, Development and Pollution (Summer Conference, June 6-9) (17)
- Popular Media (17)
- Research Collection Yong Pung How School Of Law (16)
- Scholarly Articles (16)
- Supreme Court Case Files (16)
- Elisabeth Haub School of Law Faculty Publications (15)
- Law Faculty Publications (15)
- Articles, Book Chapters, & Popular Press (14)
- Law Faculty Research Publications (14)
Articles 1 - 30 of 1719
Full-Text Articles in Law
The Precarious Art Of Classifying Facts, Allison Orr Larsen
The Precarious Art Of Classifying Facts, Allison Orr Larsen
Faculty Publications
In their terrific new article, Fact Stripping, Joseph Blocher and Brandon Garrett bring formidable expertise from their respective fields to tackle the inscrutable puzzle of appellate fact review.
[...]
In this short reply I will add to Blocher and Garrett’s illuminating work by exploring a foundational confusion their article exposes. I will first explain why classifying facts as either suitable for trial or not is a very fraught endeavor; I will then argue that this difficulty allows for significant manipulation and the risk of unprincipled application. Finally, I will nod to prior work and forecast future work where I …
Similar Fact Evidence In Contractual Interpretation: Bhoomatidevi D/O Kishinchand Chugani Mrs Kavita Gope Mirwani V Nantakumar S/O V Ramachandra And Another [2023] Sghc 37, Calvin John Kaiwen Chirnside
Similar Fact Evidence In Contractual Interpretation: Bhoomatidevi D/O Kishinchand Chugani Mrs Kavita Gope Mirwani V Nantakumar S/O V Ramachandra And Another [2023] Sghc 37, Calvin John Kaiwen Chirnside
Research Collection Yong Pung How School Of Law
In the recent Singapore High Court case of Bhoomatidevi d/o Kishinchand Chugani Mrs Kavita Gope Mirwani v Nantakumar s/o v Ramachandra and another [2023] SGHC 37, the claimant argued, inter alia, that evidence of a prior contract between the first defendant and a third party should be admitted to prove that the defendant had entered into a loan agreement with her in his personal capacity. Justice Lee Seiu Kin dismissed her claim, applying s. 14 of the Evidence Act.
Introduction To The Symposium On Digital Evidence, Melinda (M.J.) Durkee, Megiddo Tamar
Introduction To The Symposium On Digital Evidence, Melinda (M.J.) Durkee, Megiddo Tamar
Scholarship@WashULaw
The past few decades have seen radical advances in the availability and use of digital evidence in multiple areas of international law. Witnesses snap cellphone photos of unfolding atrocities and post them online, while others share updates in real time through messaging apps. Immigration officers search cell phones. Private citizens launch open-source online investigations. Investigators scrape social media posts. Digital experts verify authenticity with satellite geolocation. These new types of evidence and digitally facilitated methods and patterns of evidence gathering and analysis are revolutionizing the everyday practice of international law, drawing in an ever-wider circle of actors who can contribute …
The Automated Fourth Amendment, Maneka Sinha
The Automated Fourth Amendment, Maneka Sinha
Faculty Scholarship
Courts routinely defer to police officer judgments in reasonable suspicion and probable cause determinations. Increasingly, though, police officers outsource these threshold judgments to new forms of technology that purport to predict and detect crime and identify those responsible. These policing technologies automate core police determinations about whether crime is occurring and who is responsible. Criminal procedure doctrine has failed to insist on some level of scrutiny of—or skepticism about—the reliability of this technology. Through an original study analyzing numerous state and federal court opinions, this Article exposes the implications of law enforcement’s reliance on these practices given the weighty interests …
The Bharatiya Sakshya Bill, 2023: A New And Unimproved Evidence Act, Kunal Ambasta
The Bharatiya Sakshya Bill, 2023: A New And Unimproved Evidence Act, Kunal Ambasta
Popular Media
The secrecy in drafting the bill to replace the Evidence Act is reminiscent of colonial legislation by committee. The lack of consultation has meant that the interpretative confusions in existing law remain unresolved.
The Superfluous Rules Of Evidence, Jeffrey Bellin
The Superfluous Rules Of Evidence, Jeffrey Bellin
Faculty Publications
There are few American legal codifications as successful as the Federal Rules of Evidence. But this success masks the project’s uncertain beginnings. The drafters of the Federal Rules worried that lawmakers would not adopt the new rules and that judges would not follow them. As a result, they included at least thirty rules of evidence that do not, in fact, alter the admissibility of evidence. Instead, these rules: (1) market the rules project, and (2) guide judges away from anticipated errors in applying the (other) nonsuperfluous rules.
Given the superfluous rules’ covert mission, it should not be surprising that the …
Bending The Rules Of Evidence, Edward K. Cheng, G. Alexander Nunn, Julia Simon-Kerr
Bending The Rules Of Evidence, Edward K. Cheng, G. Alexander Nunn, Julia Simon-Kerr
Vanderbilt Law School Faculty Publications
The evidence rules have well-established, standard textual meanings—meanings that evidence professors teach their law students every year. Yet, despite the rules’ clarity, courts misapply them across a wide array of cases: Judges allow past acts to bypass the propensity prohibition, squeeze hearsay into facially inapplicable exceptions, and poke holes in supposedly ironclad privileges. And that’s just the beginning.
The evidence literature sees these misapplications as mistakes by inept trial judges. This Article takes a very different view. These “mistakes” are often not mistakes at all, but rather instances in which courts are intentionally bending the rules of evidence. Codified evidentiary …
Twenty Years After Krieger V Law Society Of Alberta: Law Society Discipline Of Crown Prosecutors And Government Lawyers, Andrew Flavelle Martin
Twenty Years After Krieger V Law Society Of Alberta: Law Society Discipline Of Crown Prosecutors And Government Lawyers, Andrew Flavelle Martin
Articles, Book Chapters, & Popular Press
Krieger v. Law Society of Alberta held that provincial and territorial law societies have disciplinary jurisdiction over Crown prosecutors for conduct outside of prosecutorial discretion. The reasoning in Krieger would also apply to government lawyers. The apparent consensus is that law societies rarely exercise that jurisdiction. But in those rare instances, what conduct do Canadian law societies discipline Crown prosecutors and government lawyers for? In this article, I canvass reported disciplinary decisions to demonstrate that, while law societies sometimes discipline Crown prosecutors for violations unique to those lawyers, they often do so for violations applicable to all lawyers — particularly …
Bending The Rules Of Evidence, Edward K. Cheng, G. Alexander Nunn, Julia Simon-Kerr
Bending The Rules Of Evidence, Edward K. Cheng, G. Alexander Nunn, Julia Simon-Kerr
Faculty Scholarship
The evidence rules have well-established, standard textual meanings—meanings that evidence professors teach their law students every year. Yet, despite the rules’ clarity, courts misapply them across a wide array of cases: Judges allow past acts to bypass the propensity prohibition, squeeze hearsay into facially inapplicable exceptions, and poke holes in supposedly ironclad privileges. And that’s just the beginning.
The evidence literature sees these misapplications as mistakes by inept trial judges. This Article takes a very different view. These “mistakes” are often not mistakes at all, but rather instances in which courts are intentionally bending the rules of evidence. Codified evidentiary …
Race Ethics: Colorblind Formalism And Color-Coded Pragmatism In Lawyer Regulation, Anthony V. Alfieri
Race Ethics: Colorblind Formalism And Color-Coded Pragmatism In Lawyer Regulation, Anthony V. Alfieri
Articles
The recent, high-profile civil and criminal trials held in the aftermath of the George Floyd and Ahmaud Arbery murders, the Kyle Rittenhouse killings, and the Charlottesville "Unite the Right" Rally violence renew debate over race, representation, and ethics in the U.S. civil and criminal justice systems. For civil rights lawyers, prosecutors, and criminal defense attorneys, neither the progress of post-war civil rights movements and criminal justice reform campaigns nor the advance of Critical Race Theory and social movement scholarship have resolved the debate over the use of race in pretrial, trial, and appellate advocacy, and in the lawyering process more …
Introduction: The Arc Of Race In Professional And Collegiate Sports Symposium, Kenneth D. Ferguson
Introduction: The Arc Of Race In Professional And Collegiate Sports Symposium, Kenneth D. Ferguson
Faculty Works
This introduction will highlight the five articles featured in the symposium issue of the UMKC Law Review and will also situate those articles in the Sports Law Symposium titled, The Arc of Race in Professional and Collegiate Sports. The goal of the two-day virtual symposium was to bring together leading legal, social science, and medical science scholars to engage in discourse concerning how race and gender have affected and continue to influence decision making in professional and collegiate sports. The symposium exposed how race, culture, ethnicity, and gender affect a wide range of phenomena in scientific fields such as neuropsychological …
Remarks On Manifesting Justice: Wrongly Convicted Women Reclaim Their Rights, Amber Baylor, Valena Beety, Susan Sturm
Remarks On Manifesting Justice: Wrongly Convicted Women Reclaim Their Rights, Amber Baylor, Valena Beety, Susan Sturm
Articles by Maurer Faculty
The following are remarks from a panel discussion co-hosted by the Columbia Journal of Gender and Law and the Center for Gender and Sexuality Law on the book Manifesting Justice: Wrongly Convicted Women Reclaim Their Rights.
Flip The Switch: Swapping The Socratic Method For Applied Learning In Evidence Law 646, Chelsi Hayden
Flip The Switch: Swapping The Socratic Method For Applied Learning In Evidence Law 646, Chelsi Hayden
UNL Faculty Course Portfolios
This course portfolio documents my evaluation of my teaching methods and student learning in an Evidence law course. My goal was to document positive outcomes associated with applied learning through a flipped course structure. The data, however, suggests that more research is necessary to determine whether there is a strong correlation between a flipped course and student learning. The data suggests students are generally performing as expected in the course. It also indicates that providing lectures and problem sets before class is effective but may not be more effective than providing them in class, suggesting the timing of the lectures …
A New And Improved Doctrine Of Double Effect: Not Just For Trolleys
A New And Improved Doctrine Of Double Effect: Not Just For Trolleys
Connecticut Law Review
In its standard formulation, the doctrine of double effect (DDE) permits an action that causes foreseeable and harmful, even dire, collateral consequences, so long as the actor merely foresees but does not intend them and the harms are proportional to the benefit. Yet DDE’s critics question the moral distinction between intending a bad outcome, on one hand, and merely knowing that the actions will result in the bad outcome but acting in exactly the same way, on the other. After all, except in a few narrow circumstances, criminal law in the United States treats intent and knowledge as equally culpable …
Embracing Deference, Edward K. Cheng, Elodie O. Currier, Payton B. Hampton
Embracing Deference, Edward K. Cheng, Elodie O. Currier, Payton B. Hampton
Vanderbilt Law School Faculty Publications
A fundamental conceptual problem has long dogged discussions about scientific and other expert evidence in the courtroom. In American law, the problem was most famously posed by Judge Learned Hand, who asked: "[H]ow can the jury judge between two statements each founded upon an experience confessedly foreign in kind to their own? It is just because they are incompetent for such a task that the expert is necessary at all." This puzzle, sometimes known as the "expert paradox," is quite general. It applies not only to the jury as factfinder, but also to the judge as gate- keeper under the …
Reforming Prior Conviction Impeachment, Julia Simon-Kerr, Anna Roberts
Reforming Prior Conviction Impeachment, Julia Simon-Kerr, Anna Roberts
Faculty Articles and Papers
No abstract provided.
Law's Credibility Problem, Julia Simon-Kerr
Law's Credibility Problem, Julia Simon-Kerr
Faculty Articles and Papers
Credibility determinations often seal people's fates. They can determine outcomes at trial; they condition the provision of benefits, like social security; and they play an increasingly dispositive role in immigration proceedings. Yet there is no stable definition of credibility in the law. Courts and agencies diverge at the most basic definitional level in their use of the category.
Consider a real-world example. An immigration judge denies asylum despite the applicant's plausible and unrefuted account of persecution in their country of origin. The applicant appeals, pointing to the fact that Congress enacted a "rebuttable presumption of credibility" for asylum-seekers "on appeal." …
Beliefs And Probabilities: The Errors That Remain Are Mine Alone, Kevin M. Clermont
Beliefs And Probabilities: The Errors That Remain Are Mine Alone, Kevin M. Clermont
Cornell Law Faculty Publications
Imagine that the preface to a professor’s book implicitly asserts that all the propositions in the rest of his or her book are true, but explicitly acknowledges that experience would suggest some errors remain among those propositions. The prof thereby seems paradoxically to believe inconsistent statements. But in fact this famous preface paradox is an illusion. The first statement is a belief reflecting epistemic uncertainty, while the second is a probabilistic statement about aleatory uncertainty. If one were to convert the probability into a belief, one would see that the author rationally holds perfectly consistent beliefs.
Likewise the lottery paradox …
Environmental Evidence, Seema Kakade
Environmental Evidence, Seema Kakade
Faculty Scholarship
The voices of impacted people are some of the most important when trying to make improvements to social justice in a variety of contexts, including, criminal policing, housing, and health care. After all, the people with on the ground experience know what is likely to truly effectuate change in their community, and what is not. Yet, such lived experience is also often significantly lacking and undermined in law and policy. People with lived experience tend to be seen as both community experts with valuable knowledge, as well as non-experts with little valuable knowledge. This Article explores the lived experience with …
Digital Habit Evidence, Andrew Guthrie Ferguson
Digital Habit Evidence, Andrew Guthrie Ferguson
Articles in Law Reviews & Other Academic Journals
This Article explores how “habit evidence” will become a catalyst for a new form of digital proof based on the explosive growth of smart homes, smart cars, smart devices, and the Internet of Things. Habit evidence is the rule that certain sorts of semiautomatic, regularized responses to particular stimuli are trustworthy and thus admissible under the Federal Rules of Evidence (“FRE”) 406 “Habit; Routine Practice” and state equivalents.
While well established since the common law, “habit” has made only an inconsistent appearance in reported cases and has been underutilized in trial practice. But intriguingly, once applied to the world of …
Provisional Measures In Aid Of Arbitration, Ronald A. Brand
Provisional Measures In Aid Of Arbitration, Ronald A. Brand
Articles
The success of the New York Convention has made arbitration a preferred means of dispute resolution for international commercial transactions. Success in arbitration often depends on the extent to which a party may secure assets, evidence, or the status quo between parties prior to the completion of the arbitration process. This makes the availability of provisional measures granted by either arbitral tribunals or by courts fundamental to the arbitration. In this Article, I consider the existing legal framework for provisional measures in aid of arbitration, with particular attention to the sources of the rules providing for such measures. Those sources …
The Future Scope Of The Character Evidence Prohibition: The Contextual Statutory Construction Argument That Could Finally Force The Policy Discussion, Paul F. Rothstein, Edward J. Imwinkelried
The Future Scope Of The Character Evidence Prohibition: The Contextual Statutory Construction Argument That Could Finally Force The Policy Discussion, Paul F. Rothstein, Edward J. Imwinkelried
Georgetown Law Faculty Publications and Other Works
The general prohibition of character evidence is one of the most important doctrines in American Evidence law. Since the Supreme Court has held that the Eighth Amendment forbids status offenses in adult prosecutions, the doctrine has constitutional overtones. Federal Rule of Evidence 404(b) applies the prohibition to evidence of an accused’s other crimes and wrongs. Since such evidence can be inflammatory and the Rule’s limits sometimes confusing, Rule 404(b) generates more published opinions than any other provision of the Federal Rules of Evidence. Although the prohibition extends beyond other crimes, most of the controversy swirls around the Rule’s application to …
Theorizing Corroboration, Maggie Wittlin
Theorizing Corroboration, Maggie Wittlin
Faculty Scholarship
A child makes an out-of-court statement accusing an adult of abuse. That statement is important proof, but it also presents serious reliability concerns. When deciding whether it is sufficiently reliable to be admitted, should a court consider whether the child’s statement is corroborated—whether, for example, there is medical evidence of abuse? More broadly, should courts consider corroboration when deciding whether evidence is reliable enough to be admitted at trial? Judges, rule-makers, and scholars have taken significantly divergent approaches to this question and come to different conclusions.
This Article argues that there is a key problem with using corroboration to evaluate …
Confrontation, The Legacy Of Crawford, And Important Unanswered Questions, Paul F. Rothstein, Ronald J. Coleman
Confrontation, The Legacy Of Crawford, And Important Unanswered Questions, Paul F. Rothstein, Ronald J. Coleman
Georgetown Law Faculty Publications and Other Works
This is a short piece for the University of Michigan Journal of Law Reform as part of its 2024 Symposium on “Crawford at 20: Reforming the Confrontation Clause.” The piece's purpose is to highlight certain important questions left unanswered by Crawford v. Washington and subsequent confrontation cases.
Is Disclosure And Certification Of The Use Of Generative Ai Really Necessary?, Maura R. Grossman, Paul W. Grimm, Daniel G. Brown
Is Disclosure And Certification Of The Use Of Generative Ai Really Necessary?, Maura R. Grossman, Paul W. Grimm, Daniel G. Brown
Faculty Scholarship
No abstract provided.
Tragedies Of The Cultural Commons, Etienne C. Toussaint
Tragedies Of The Cultural Commons, Etienne C. Toussaint
Faculty Publications
In the United States, Black cultural expressions of democratic life that operate within specific historical-local contexts, yet reflect a shared set of sociocultural mores, have been historically crowded out of the law and policymaking process. Instead of democratic cultural discourse occurring within an open and neutral marketplace of ideas, the discursive production and consumption of democratic culture in American politics has been rivalrous. Such rivalry too often enables dominant White supremacist cultural beliefs, values, and practices to exercise their hegemony upon law’s production and meaning. The result has been tragedy for politically disempowered and socioeconomically excluded communities.
This Article uses …
Limiting Limited Liability: Requiring More Than Mere Subsequence Under Federal Rule Of Evidence 407, Cynara Hermes Mcquillan
Limiting Limited Liability: Requiring More Than Mere Subsequence Under Federal Rule Of Evidence 407, Cynara Hermes Mcquillan
Scholarly Works
Rule 407 of the Federal Rules of Evidence, the “Subsequent Remedial Measures” Rule, is troubling. This exclusionary rule of evidence prohibits using subsequent remedial measures to demonstrate negligence, culpable conduct, or product defect. But, other than in the title of the rule, the phrase “subsequent remedial measures” does not appear anywhere in the rule’s text and the rule itself does not expressly define what measures fall within its purview. This omission creates space for different judicial interpretations of the rule’s language and ultimately disparate judicial outcomes. Although the Federal Rules of Evidence lend themselves to fact-specific inquiries that can lead …
Optimal Standards Of Proof In Antitrust, Murat C. Mungan, Joshua Wright
Optimal Standards Of Proof In Antitrust, Murat C. Mungan, Joshua Wright
Faculty Scholarship
Economic analyses of antitrust institutions have thus far focused predominantly on optimal penalties and the design of substantive legal rules, and have largely ignored the standard of proof used in trials as a policy tool in shaping behavior. This neglected tool can play a unique role in the antitrust context, where a given firm may have the choice to engage in exceptional anticompetitive or procompetitive behavior, or simply follow more conventional business practices. The standard of proof used in determining the legality of a firm’s conduct affects not only whether the firm chooses to engage in pro- versus anticompetitive behavior, …
Artificial Justice: The Quandary Of Ai In The Courtroom, Paul W. Grimm, Maura R. Grossman, Sabine Gless, Mireille Hildebrandt
Artificial Justice: The Quandary Of Ai In The Courtroom, Paul W. Grimm, Maura R. Grossman, Sabine Gless, Mireille Hildebrandt
Judicature International
No abstract provided.
Brown (Larry) V. State Of Nevada, 138 Nev. Adv. Op. 44 (June 23, 2022), Anne-Greyson Long
Brown (Larry) V. State Of Nevada, 138 Nev. Adv. Op. 44 (June 23, 2022), Anne-Greyson Long
Nevada Supreme Court Summaries
In this appeal, the Court considered whether a jury may consider footwear impression evidence without the aid of expert testimony. The Court determined it was proper here. The Court also considered whether the district court violated the defendant's rights under the Confrontation Clause by allowing a witness to testify via a two-way video and limiting cross-examination to protect proprietary trade secrets. The Court determined that the district court failed to make express findings under Lipitz. The Court also concluded that the district court did not abuse its discretion by limiting witness testimony. No reversal was granted, and the court …