Law Commons^™

Valuation Averaging: A New Procedure For Resolving Valuation Disputes, Keith Sharfman

Rutgers Law School (Newark) Faculty Papers

In this Article, Professor Sharfman addresses the problem of "discretionary valuation": that courts resolve valuation disputes arbitrarily and unpredictably, thus harming litigants and society. As a solution, he proposes the enactment of "valuation averaging," a new procedure for resolving valuation disputes modeled on the algorithmic valuation processes often agreed to by sophisticated private firms in advance of any dispute. He argues that by replacing the discretion of judges and juries with a mechanical valuation process, valuation averaging would cause litigants to introduce more plausible and conciliatory valuations into evidence and thereby reduce the cost of valuation litigation and increase the …

Expert Testimony And Scientific Evidence, Lynn Mclain

All Faculty Scholarship

Handout from a day-long lecture on expert and scientific testimony at the Maryland Judicial Institute.

Daubert & Danger: The "Fit" Of Expert Predictions In Civil Commitments, Alex Scherr

Scholarly Works

The opinions of experts in prediction in civil commitment hearings should help the courts, but over thirty years of commentary, judicial opinion, and scientific review argue that predictions of danger lack scientific rigor. The United States Supreme Court has commented regularly on the uncertainty of predictive science. The American Psychiatric Association has argued to the Court that "[t]he professional literature uniformly establishes that such predictions are fundamentally of very low reliability." Scientific studies indicate that some predictions do little better than chance or lay speculation, and even the best predictions leave substantial room for error about individual cases. The sharpest …

Impeachment Of Witnesses: A Walking Tour, Lynn Mclain

All Faculty Scholarship

This handout from the Maryland State's Attorneys' Convention in 2003 summarizes the general methods of witness impeachment, who may be impeached, and impeachments by attacks on witnesses' character for truthfulness.

"Quick-Takes" On A Few Recent Decisions In Evidence Law ... And Rule 5-407, Lynn Mclain

All Faculty Scholarship

Handout from the State and Local Government Law Institute covering recent (2003) Maryland evidence cases.

Harmonizing Rules 609 And 608 (B) Of The Federal Rules Of Evidence, Donald H. Zeigler

Articles & Chapters

No abstract provided.

Admissibility Of Fruits Of Breached Evidentiary Privileges: The Importance Of Adversarial Fairness, Party Culpability, And Fear Of Immunity, Robert P. Mosteller

Faculty Publications

No abstract provided.

Trials And Tribulations: Science In The Law, Susan Haack

Articles

No abstract provided.

Forfeiture By Wrongdoing And Those Who Acquiesce In Witness Intimidation: A Reach Exceeding Its Grasp And Other Problems With Federal Rule Of Evidence 804(B)(6), James F. Flanagan

Faculty Publications

This article is the first comprehensive and critical analysis of the new exception to the hearsay rule that permits prosecutors to admit hearsay statements of absent witnesses when the defendant causes their unavailability at trial. The article develops the problems with the rule's overbroad language, its potential to admit unreliable hearsay and its relationship to the Confrontation Clause. These issues are of increasing interest to lawyers, judges and justices now that it is a federal rule and been adopted by ten states.

The first section is a comprehensive statement of the rule as now applied. The exception is traced from …

Virtual Cross-Examination: The Art Of Impeaching Hearsay, John G. Douglass

Law Faculty Publications

Trial lawyers and judges are quite accustomed to courtroom battles over the admissibility of hearsay. But relatively few have much experience at challenging the credibility of hearsay. Once hearsay is admitted in evidence, even the ablest advocates typically proceed as if the hearsay battle were over, at least until the appeal. Few lawyers take advantage of the opportunities available to impeach the hearsay declarant. Consider the perspective of one experienced trial judge: I sometimes wonder at what seems to me the passing up of golden opportunities by the able advocate. Foremost among these lost opportunities is the virtual total neglect …

Why Judges Applying The Daubert Trilogy Need To Know About The Social, Institutional, And Rhetorical -- And Not Just The Methodological Aspects Of Science, Lewis H. Larue, David S. Caudill

Scholarly Articles

In response to the claim that many judges are deficient in their understanding of scientific methodology, this Article identifies in recent cases (i) a pragmatic perspective on the part of federal appellate judges when they reverse trial judges who tend to idealize science (i.e., who do not appreciate the local and practical goals and limitations of science), and (ii) an educational model of judicial gatekeeping that results in reversal of trial judges who defer to the social authority of science (i.e., who mistake authority for reliability). Next, this Article observes that courts (in the cases it analyzes) are not interested …

Misuse Of Scientific Evidence By Prosecutors, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

The prosecutor's misuse of scientific evidence to charge and convict has not been sufficiently examined. Courts and commentators critiquing abuses of scientific evidence in criminal cases rarely focus on the prosecutor's role in the process. Issues typically discussed are the questionable nature of the evidence, the controversial manner in which the evidence was acquired and tested, whether the expert arrived at her conclusions in a scientifically reliable manner, and whether the expert's courtroom testimony was false or misleading. The prosecutor's control over and manipulation of the scientific evidence to shape the fact-finder's evaluation of the facts and to persuade the …

Wrongful Convictions And The Accuracy Of The Criminal Justice System, H. Patrick Furman

Publications

No abstract provided.

Destruction Of Documents Before Proceedings Commence: What Is A Court To Do?, Camille Cameron, Jonathan Liberman

Articles, Book Chapters, & Popular Press

The effective performance by courts of their adjudicative role depends on the availability of relevant evidence. In civil proceedings, the discovery process aims to ensure that such evidence is available. If documents that would be relevant evidence in a trial are destroyed, a fair adjudication is made difficult, if not impossible. This is so whether the destruction of documents occurs before or after proceedings commence. This article asks what a trial judge should do in a situation where relevant evidence is unavailable because one of the parties has destroyed documents before the proceedings commenced but anticipating that such proceedings were …

Victim Impact Evidence: Hard To Find The Real Rules, Robert P. Mosteller

Faculty Publications

No abstract provided.

The Virtues Of Knowing Less: Justifying Privacy Protections Against Disclosure, Daniel J. Solove

GW Law Faculty Publications & Other Works

This Article develops justifications for protections against the disclosure of private information. An extensive body of scholarship has attacked such protections as anathema to the Information Age, where the free flow of information is championed as a fundamental value. This Article responds to two general critiques of disclosure protections: (1) that they inhibit freedom of speech, and (2) that they restrict information useful for judging others.

Regarding the free speech critique, the Article argues that not all speech is of equal value; speech of private concern is less valuable than speech of public concern. The difficulty, however, is distinguishing between …

Implementing Constitutional Rights For Juveniles: The Parent-Child Privilege In Context, Catherine J. Ross

GW Law Faculty Publications & Other Works

This article advocates for the creation of a parent-child privilege by focusing on the parental contribution to raising their children. The article argues that children cannot fully exercise their constitutional rights without being able to confide freely in their parents and consult them before waiving rights and while working with their attorneys. I begin by describing the current state of privilege law and suggest that there is already a “de facto” tendency to observe a parent-child privilege. I show that courts have failed to distinguish among three distinctive kinds of confidences: (1) testimony concerning confidences from a minor child to …

A Compromise Approach To Compromise Verdicts, Michael B. Abramowicz

GW Law Faculty Publications & Other Works

Although one of the legal system’s most salient attributes is its insistence that a civil jury choose the story of one party over that of another, scholars have thus far paid almost no attention to the possibility of replacing the preponderance-of-the-evidence rule with an alternative that is not “winner-take-all.” This Article focuses on the issue of uncertainty about what the defendant did or whether the plaintiff was injured, offering an alternative to the extremes of all-or-nothing and compromise verdicts. It considers the possibility that, while sometimes an all-or-nothing verdict is appropriate, at other times a compromise verdict would be better. …