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Articles 31 - 60 of 68
Full-Text Articles in Law
Burden Of Proof, Prima Facie Case And Presumption In Wto Dispute Settlement, John J. Barceló Iii
Burden Of Proof, Prima Facie Case And Presumption In Wto Dispute Settlement, John J. Barceló Iii
Cornell Law Faculty Publications
The essay maintains that the WTO Appellate Body's concepts and terminology concerning a claimant's burden of proof-the concepts of prima facie case, presumption, and burden shifting-are disturbingly ambiguous and potentially misleading. This is so whether one thinks of these terms from either a common law or a civil law perspective. In the face of the current ambiguity, a future panel might understand the AB's prima facie case concept to require an overwhelming level of proof from the claimant. On the other hand, a different panel might allow a rather weak level of claimant's proof to meet the prima facie requirement, …
Dickey V. State: Jury Instruction On Drug Use And Its Concomitant Effect On Eyewitness Credibility, Rachel M. Witriol
Dickey V. State: Jury Instruction On Drug Use And Its Concomitant Effect On Eyewitness Credibility, Rachel M. Witriol
Maryland Law Review Online
No abstract provided.
Brief Of Former Article Iii Judges And Law Professors As Amici Curiae In Support Of Respondent, Mohawk Industries V. Carpenter, Stephen I. Vladeck
Brief Of Former Article Iii Judges And Law Professors As Amici Curiae In Support Of Respondent, Mohawk Industries V. Carpenter, Stephen I. Vladeck
Amicus Briefs
The burden on the thirteen Article III Courts of Appeals has increased significantly in recent years. Data maintained by the Administrative Office of the U.S. Courts demonstrate the increasing numerical caseload of the Article III courts of appeals over the last 5, 10, and 25 year periods, even as the number of congressionally authorized judgeships has remained almost static, and the real-dollar value of judicial budgets - including salaries - has decreased.
However, the data tell only part of the story. The same period has also witnessed a subtle but more profound change in the substantive nature of some classes …
Identification, Individualization, Uniqueness, David H. Kaye
Identification, Individualization, Uniqueness, David H. Kaye
Journal Articles
Criminalists and many forensic scientists concerned with the identification of trace evidence have distinguished between identification and individualization, but they have not distinguished as precisely between individualization and uniqueness. This paper clarifies these terms and discusses the relationships among identification, individualization, and uniqueness in forensic-science evidence.
Rounding Up The Usual Suspects: A Logical And Legal Analysis Of Dna Trawling Cases, David H. Kaye
Rounding Up The Usual Suspects: A Logical And Legal Analysis Of Dna Trawling Cases, David H. Kaye
Journal Articles
Courts are beginning to confront a problem that has divided the scientific community - whether identifying a defendant by fishing through a database of DNA types to find a match to a crime-scene sample reduces the significance of a match. For years, the problem seemed academic. Now that the U.S. has more than five million DNA profiles from convicted offenders and suspects in a national, computer-searchable database, the question has assumed more urgency. Increasingly, individuals are being charged with crimes as a result of a match between their recorded profile and the DNA from a victim or scene of a …
'False But Highly Persuasive:' How Wrong Were The Probability Estimates In Mcdaniel V. Brown?, David H. Kaye
'False But Highly Persuasive:' How Wrong Were The Probability Estimates In Mcdaniel V. Brown?, David H. Kaye
Journal Articles
In McDaniel v. Brown, the Supreme Court will review the use of DNA evidence in a 1994 trial for sexual assault and attempted murder. The Court granted certiorari to consider two procedural issues - the standard of federal postconviction review of a state jury verdict for sufficiency of the evidence, and the district court's decision to allow the prisoner to supplement the record of trials, appeals, and state postconviction proceedings with a geneticist's letter twelve years after the trial.
This essay clarifies the nature and extent of the errors in the presentation of the DNA evidence in Brown. It questions …
Trawling Dna Databases For Partial Matches: What Is The Fbi Afraid Of?, David H. Kaye
Trawling Dna Databases For Partial Matches: What Is The Fbi Afraid Of?, David H. Kaye
Journal Articles
DNA evidence is often presented as the “gold standard” for forensic science. But this was not always the case. For years, eminent scientists complained that the estimates of the tiny frequencies of DNA types were unfounded. It took scores of research papers, dozens of judicial opinions, and two committees of the National Academy of Sciences to resolve the dispute by the mid-1990s. Since 2000, however, reports have surfaced of shocking numbers of “partial matches” among samples within large DNA databases, and some scientists have complained that the infinitesimal figures used in court to estimate the probability of a random match …
Propensity Or Stereotype?: A Bad Evidence Experiment In Indian Country, Aviva Orenstein
Propensity Or Stereotype?: A Bad Evidence Experiment In Indian Country, Aviva Orenstein
Articles by Maurer Faculty
In a significant break with traditional evidence rules and policies, the Federal Rules of Evidence concerning rape and child abuse, Rules 413 and 414, permit the government to admit the accused’s prior sexual misconduct as evidence of character and propensity. Although these rules have been roundly criticized, insufficient attention has been paid to the fact that in allowing propensity evidence for federal sex offenses (as opposed to offenses under state law), these rules disproportionately affect one distinct civilian population: Indians.
The de facto concentration of Rules 413-414 cases in Indian Country raises troubling questions regarding what it means to have …
Honoring Margaret Berger With A Sensible Idea: Insisting That Judges Employ A Balancing Test Before Admitting The Accused's Convictions Under Federal Rule Of Evidence 609(A)(2), Aviva A. Orenstein
Honoring Margaret Berger With A Sensible Idea: Insisting That Judges Employ A Balancing Test Before Admitting The Accused's Convictions Under Federal Rule Of Evidence 609(A)(2), Aviva A. Orenstein
Articles by Maurer Faculty
No abstract provided.
Impeachable Offenses?: Why Civil Parties In Quasi-Criminal Cases Should Be Treated Like Criminal Defendants Under The Felony Impeachment Rule, Colin Miller
Faculty Publications
No abstract provided.
Spreigl Evidence: Still Searching For A Principled Rule, Ted Sampsell-Jones
Spreigl Evidence: Still Searching For A Principled Rule, Ted Sampsell-Jones
Faculty Scholarship
This article first examines how Minnesota’s character evidence doctrine developed, with a particular focus on the historical confusion regarding the propriety of the propensity inference. It then examines current case law and argues that Minnesota’s current Spreigl doctrine routinely allows propensity evidence. It finally proposes a choice between abandoning the current Spreigl doctrine and repealing the character rule itself. The author takes no position on which alternative should be chosen, but either is better than the status quo. The current doctrine in Minnesota is a Potemkin village.
Race, Genes And Justice: A Call To Reform The Presentation Of Forensic Dna Evidence In Criminal Trials, Jonathan Kahn
Race, Genes And Justice: A Call To Reform The Presentation Of Forensic Dna Evidence In Criminal Trials, Jonathan Kahn
Faculty Scholarship
The article considers how and when, if at all, is it appropriate to use race in presenting forensic DNA evidence in a court of law? This relatively straightforward question has been wholly overlooked by legal scholars. By pursuing it, this article promises to transform fundamentally the presentation forensic DNA evidence. Currently, it is standard practice for prosecutors to use race in presenting the odds that a given defendant's DNA matches DNA found at a crime scene. This article takes an interdisciplinary approach to question the validity of this widespread but largely uninterrogated practice. It examines how race came to enter …
The Right Remedy For The Wrongly Convicted: Judicial Sanctions For Destruction Of Dna Evidence, Cynthia E. Jones
The Right Remedy For The Wrongly Convicted: Judicial Sanctions For Destruction Of Dna Evidence, Cynthia E. Jones
Articles in Law Reviews & Other Academic Journals
Many state innocence protection statutes give courts the power to impose appropriate sanctions when biological evidence needed for postconviction DNA testing is wrongly destroyed by the government. Constitutional claims based on wrongful evidence destruction are governed by the virtually insurmountable "bad faith" standard articulated in Arizona v. Youngblood. The wrongful destruction of DNA evidence in contravention of state innocence protection laws, however, should be governed by the standards used to adjudicate other "access to evidence" violations in criminal cases, including disclosures mandated by the rules of criminal procedure, the Jencks Act, and Brady v. Maryland. Under the "access to evidence" …
Left Hand, Third Finger: The Wearing Of Wedding (Or Other) Rings As A Form Of Assertive Conduct Under The Hearsay Rule, Peter Nicolas
Left Hand, Third Finger: The Wearing Of Wedding (Or Other) Rings As A Form Of Assertive Conduct Under The Hearsay Rule, Peter Nicolas
Articles
No abstract provided.
Embracing Paradox: Three Problems The Nlrb Must Confront To Resist Further Erosion Of Labor Rights In The Expanding Immigrant Workplace, Michael C. Duff
Embracing Paradox: Three Problems The Nlrb Must Confront To Resist Further Erosion Of Labor Rights In The Expanding Immigrant Workplace, Michael C. Duff
All Faculty Scholarship
This article discusses the Supreme Court's 2002 Hoffman Plastic Compounds opinion, normally considered in terms of its social justice ramifications, from the different perspective of NLRB attorneys tasked with pursuing enforcement of the National Labor Relations Act (NLRA) under the conceptually (and practically) odd rubric that some NLRA employees (unauthorized workers) have no remedy under the NLRA. The article focuses on three problems evincing paradox. First, NLRB attorneys prosecuting cases involving these workers will probably gain knowledge of unlawful background immigration conduct. To what extent must the attorneys disclose it, and to whom? Second, NLRB attorneys are extraordinarily reliant on …
Irreconcilable Differences? The Troubled Marriage Of Science And Law, Susan Haack
Irreconcilable Differences? The Troubled Marriage Of Science And Law, Susan Haack
Articles
No abstract provided.
Evidence Code Section 802: The Neglected Key To Rationalizing The California Law Of Expert Testimony, David L. Faigman, Edward J. Imwinkelried
Evidence Code Section 802: The Neglected Key To Rationalizing The California Law Of Expert Testimony, David L. Faigman, Edward J. Imwinkelried
Faculty Scholarship
No abstract provided.
Law, Statistics, And The Reference Class Problem, Edward K. Cheng
Law, Statistics, And The Reference Class Problem, Edward K. Cheng
Vanderbilt Law School Faculty Publications
Statistical data are powerful, if not crucial, pieces of evidence in the courtroom. Whether one is trying to demonstrate the rarity of a DNA profile, estimate the value of damaged property, or determine the likelihood that a criminal defendant will recidivate, statistics often have an important role to play. Statistics, however, raise a number of serious challenges for the legal system, including concerns that they are difficult to understand, are given too much deference from juries, or are easily manipulated by the parties' experts. In this preview piece, I address one of these challenges, known as the "reference class problem," …
The Future Of Neuroimaged Lie Detection And The Law, Joelle A. Moreno
The Future Of Neuroimaged Lie Detection And The Law, Joelle A. Moreno
Faculty Publications
No abstract provided.
The Politics Of Law And Film Study: An Introduction To The Symposium On Legal Outsiders In American Film, Jessica Silbey
The Politics Of Law And Film Study: An Introduction To The Symposium On Legal Outsiders In American Film, Jessica Silbey
Faculty Scholarship
The articles collected in this Symposium Issue on Legal Outsiders in American Film are examples of a turn in legal scholarship toward the analysis of culture. The cultural turn in law takes as a premise that law and culture are inextricably intertwined. Common to the project of law and culture is how legal and cultural discourse challenge or sustain communities, identities and relations of power. In this vein, each of the articles in this Symposium Issue look closely at a film or a set of films as cultural objects which, when engaged critically, help us think about law as an …
Will Quants Rule The (Legal) World?, Edward K. Cheng
Will Quants Rule The (Legal) World?, Edward K. Cheng
Vanderbilt Law School Faculty Publications
Professor Ian Ayres, in his new book, Super Crunchers, details the brave new world of statistical prediction and how it has already begun to affect our lives. For years, academic researchers have known about the considerable and at times surprising advantages of statistical models over the considered judgments of experienced clinicians and experts. Today, these models are emerging all over the landscape. Whether the field is wine, baseball, medicine, or consumer relations, they are vying against traditional experts for control over how we make decisions. For the legal system, the take-home of Ayres's book and the examples he describes is …
A Practical Solution To The Reference Class Problem, Edward K. Cheng
A Practical Solution To The Reference Class Problem, Edward K. Cheng
Vanderbilt Law School Faculty Publications
The "reference class problem" is a serious challenge to the use of statistical evidence that arguably arises every day in wide variety of cases, including toxic torts, property valuation, and even drug smuggling. At its core, it observes that statistical inferences depend critically on how people, events, or things are classified. As there is (purportedly) no principle for privileging certain categories over others, statistics become manipulable, undermining the very objectivity and certainty that make statistical evidence valuable and attractive to legal actors. In this paper, I propose a practical solution to the reference class problem by drawing on model selection …
Giles V. California: A Personal Reflection, Richard D. Friedman
Giles V. California: A Personal Reflection, Richard D. Friedman
Articles
In this Essay, Professor Friedman places Giles v. California in the context of the recent transformation of the law governing the Confrontation Clause of the Sixth Amendment. He contends that a robust doctrine of forfeiture is an integral part of a sound conception of the confrontation right. One reason this is so is that cases fitting within the traditional hearsay exception for dying declarations can be explained as instances of forfeiture. This explanation leads to a simple structure of confrontation law, qualified by the principle that the confrontation right may be waived or forfeited but not subject to genuine exceptions. …
A Witness To Justice, Jessica Silbey
A Witness To Justice, Jessica Silbey
Faculty Scholarship
In the 1988 film The Accused, a young woman named Sarah Tobias is gang raped on a pinball machine by three men while a crowded bar watches. The rapists cut a deal with the prosecutor. Sarah's outrage at the deal convinces the assistant district attorney to prosecute members of the crowd that cheered on and encouraged the rape. This film shows how Sarah Tobias, a woman with little means and less experience, intuits that according to the law rape victims are incredible witnesses to their own victimization. The film goes on to critique what the right kind of witness would …
John Henry Wigmore, Richard D. Friedman
John Henry Wigmore, Richard D. Friedman
Book Chapters
Wigmore, John Henry (1863-1943). Law professor and dean. Wigmore was born and reared in San Francisco. His parents were both immigrants, his mother from England and his father, of English heritage, from Ireland. Harry, as he was known familiarly, was the oldest and most favored of his extraordinarily doting mother's seven children. The family was prosperous - his father had an importing business - and Harry was educated principally in private schools. He then attended Harvard College, prompting the mother to move the family to Massachusetts to be close to him. After graduating in 1883, he spent a brief interlude …
A Matter Of Context: Social Framework Evidence In Employment Discrimination Class Actions, Melissa Hart, Paul M. Secunda
A Matter Of Context: Social Framework Evidence In Employment Discrimination Class Actions, Melissa Hart, Paul M. Secunda
Publications
In litigation disputes over the certification of employment discrimination class actions, social scientists have come to play a central, yet controversial, role. Organizational behavioralists and social psychologists regularly testify for the plaintiffs, offering what is commonly referred to as social framework testimony. These experts explain the general social science research on the operation of stereotyping and bias in decision making and examine the challenged workplace to identify those policies and practices that research has shown will tend to increase and those that will tend to limit the likely impact of these factors. Defendants fight hard against the admission of social …
The Expanding Use Of The Res Gestae Doctrine, H. Patrick Furman, Ann England
The Expanding Use Of The Res Gestae Doctrine, H. Patrick Furman, Ann England
Publications
This article provides a brief history of the doctrine of res gestae and an analysis of its current usage in both Colorado state and federal courts.
Cross-Examining Film, Jessica Silbey
Cross-Examining Film, Jessica Silbey
Faculty Scholarship
The Supreme Court decision in Scott v. Harris holds that a Georgia police officer did not violate a fleeing suspect's Fourth Amendment rights when he caused the suspect's car to crash. The court's decision relies almost entirely on the filmed version of the high-speed police chase taken from a "dash-cam," a video camera mounted on the dashboard of the pursuing police cruiser. The Supreme Court said that in light of the contrary stories told by the opposing parties to the lawsuit, the only story to be believed was that told by the video. In Scott v. Harris, the court fell …
Case For A Constitutional Definition Of Hearsay: Requiring Confrontation Of Testimonial, Nonassertive Conduct And Statements Admitted To Explain An Unchallenged Investigation, The, James L. Kainen, Carrie A. Tendler
Case For A Constitutional Definition Of Hearsay: Requiring Confrontation Of Testimonial, Nonassertive Conduct And Statements Admitted To Explain An Unchallenged Investigation, The, James L. Kainen, Carrie A. Tendler
Faculty Scholarship
Crawford v. Washington’s historical approach to the confrontation clause establishes that testimonial hearsay inadmissible without confrontation at the founding is similarly inadmissible today, despite whether it fits a subsequently developed hearsay exception. Consequently, the requirement of confrontation depends upon whether an out-of-court statement is hearsay, testimonial, and, if so, whether it was nonetheless admissible without confrontation at the founding. A substantial literature has developed about whether hearsay statements are testimonial or were, like dying declarations, otherwise admissible at the founding. In contrast, this article focuses on the first question – whether statements are hearsay – which scholars have thus far …
Scientific Evidence And Prosecutorial Misconduct In The Duke Lacrosse Rape Case, Paul C. Giannelli
Scientific Evidence And Prosecutorial Misconduct In The Duke Lacrosse Rape Case, Paul C. Giannelli
Faculty Publications
The need for pretrial discovery in criminal cases is critical. A defendant's right to confrontation, effective assistance of counsel, and due process often turns on pretrial disclosure. This essay discusses a case that demonstrates this point.