Law Commons^™

Taxing Litigation: Federal Tax Concerns Of Personal Injury Plaintiffs And Their Lawyers, Gregg Polsky

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This Article addresses the federal tax concerns ofpersonal injury plaintiffs and the lawyers who represent them, typically on a contingencyfee basis. It explains when plaintiffs' recoveries are taxable for income and employment tax purposes and whether and how those recoveries are required to be reported by defendants to the IRS. It also discusses whether attorney's fees and costs are deductible by plaintiffs.

In addition to these tax planning and compliance issues, the Article also considers when tax evidence might be admissible. Plaintiffs and defendants often try to introduce tax evidence in an effort to increase or decrease, respectively, the amount …

Policing Narrative, Tal Kastner

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Counter narrative, a story that calls attention to and rebuts the presumptions of a dominant narrative framework, functions as an essential tool to reshape the bounds of the law. It has the potential to shape the collective notion of what constitutes legal authority. Black Lives Matter offers a counter narrative that challenges the characterization of the shared public space, among other aspects of contemporary society, as the space of law. Using the concept of necropower--the mobilization and prioritization of the state's power to kill--I analyze the contested physical and conceptual space of law exposed by the counter narrative of Black …

The Wrong Decision At The Wrong Time: Utah V. Strieff In The Era Of Aggressive Policing, Julian A. Cook

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On June 20, 2016, the United States Supreme Court held in Utah v. Strieff that evidence discovered incident to an unconstitutional arrest of an individual should not be suppressed given that the subsequent discovery of an outstanding warrant attenuated the taint from the unlawful detention. Approximately two weeks later the issue of aggressive policing was again thrust into the national spotlight when two African-American individuals — Alton Sterling and Philando Castile — were killed by policemen in Baton Rouge, Louisiana and Falcon Heights, Minnesota, respectively, under questionable circumstances. Though connected by proximity in time, this article will demonstrate that these …

Police Reform And The Judicial Mandate, Julian A. Cook

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In response to a crisis that threatens his tenure as Mayor of Chicago, Rahm Emanuel announced in December 2015 reform measures designed to curb aggressive police tactics by the Chicago Police Department (CPD). The reform measures are limited, but aim to reduce deadly police-citizen encounters by arming the police with more tasers, and by requiring that officers undergo deescalation training. Though allegations of excessive force have plagued the department for years, the death of Laquan McDonald, an African-American teenager who was fatally shot by Jason Van Dyke, a white officer with the CPD, was the impetus for the Mayor’s reforms. …

Decision Making And The Law: Truth Barriers, Jonathan J. Koehler, John B. Meixner Jr.

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Reaching an accurate outcome is a central goal of the American trial. But structural features of the legal system, in combination with the cognitive shortcomings of legal actors, hinder the search for truth. Regarding the legal system, various rules and policies restrict decision makers’ access to evidence, violate the laws of probability, and limit the evidentiary concerns that may be considered on appeal. Regarding legal actors, informational deficits (particularly regarding scientific and statistical evidence) and cognitive biases of police investigators, witnesses (lay and expert), attorneys, judges, and jurors pose serious obstacles. We conclude by suggesting that research in judgment and …

Teaching “The Wire”: Crime, Evidence, And Kids, Andrea L. Dennis

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I have a confession: I have only watched Season 1 of The Wire, and it has been many years since I did that. Thus, both my knowledge and pedagogical use of the show are limited. What explanation can I offer for my failings? I am a Maryland native with family who resides in Baltimore City, or Charm City as it is affectionately called. I worked for several years as an assistant federal public defender in Baltimore City. Over time, I have seen the city evolve, and I have seen it chew up and spit out many good people and some …

Unconstitutionality And The Rule Of Wide-Open Cross-Examination: Encroaching On The Fifth Amendment When Examining The Accused, Ronald L. Carlson, Michael S. Carlson

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When Georgia adopted a new evidence code on January 1, 2013, it embraced the rule on scope of cross-examination which local courts have traditionally followed. This is the wide-open rule which permits the cross-examiner to range across the entire case, no matter how limited the direct exam. Subjects foreign to the direct can be freely explored, limited only by the rule of relevancy.

Commentators have associated the majority, more limited cross-examination methodology with American jurisprudence and the wide-ranging approach with English courts. Reflecting this divide, the Supreme Court of South Dakota recognized "two principal schools of thought" when it comes …

The Hidden Daubert Factor: How Judges Use Error Rates In Assessing Scientific Evidence, John B. Meixner Jr., Shari Seidman Diamond

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In Daubert v. Merrell Dow Pharmaceuticals, the United States Supreme Court provided a framework under which trial judges must assess the evidentiary reliability of scientific evidence whose admissibility is challenged. One factor of the Daubert test, the “known or potential rate of error” of the expert’s method, has received considerably less scholarly attention than the other factors, and past empirical study has indicated that judges have a difficult time understanding the factor and use it less frequently in their analyses as compared to other factors. In this paper, we examine one possible interpretation of the “known or potential rate of …

Teaching “The Wire”: Crime, Evidence, And Kids, Andrea L. Dennis

Scholarly Works

I have a confession: I have only watched Season 1 of The Wire, and it has been many years since I did that. Thus, both my knowledge and pedagogical use of the show are limited. What explanation can I offer for my failings? I am a Maryland native with family who resides in Baltimore City, or Charm City as it is affectionately called. I worked for several years as an assistant federal public defender in Baltimore City. Over time, I have seen the city evolve, and I have seen it chew up and spit out many good people and some …

Liar, Liar, Jury's The Trier? The Future Of Neuroscience-Based Credibility Assessment And The Court, John B. Meixner Jr.

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Neuroscience-based credibility-assessment tests have recently become increasingly mainstream, purportedly able to determine whether an individual is lying to a certain set of questions (the Control Question Test) or whether an individual recognizes information that only a liable person would recognize (the Concealed Information Test). Courts have hesitated to admit these tests as evidence for two primary reasons. First, following the general standard that credibility assessment is a matter solely for the trier of fact, courts exclude the evidence because it impinges on the province of the jury. Second, because these methods have not been rigorously tested in realistic scenarios, courts …

The Future Of Inadvertent Disclosure: The Lingering Need To Revise Professional Conduct Rules, Paula Schaefer

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In recent years, the American Bar Association and state bars have deferred to lawmakers to create a legal solution to the problems associated with inadvertent disclosure. When Federal Rule of Evidence 502 was enacted in September 2008, lawmakers and commentators praised the new rule as a remedy to costly pre-production privilege review and as an answer to the uncertainties of waiver law.

This article examines the numerous inadvertent disclosure issues that remain unanswered for litigators and transactional attorneys, and considers the new problems created by Federal Rule of Evidence 502. In 2009, transactional attorneys have no practical means to obtain …

Toward Ethical Plea Bargaining, Erica J. Hashimoto

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Defendants in criminal cases are overwhelmingly more likely to plead guilty than to go to trial. Presumably, at least a part of the reason that most of them do so is that it is in their interest to plead guilty, i.e., they will receive a more favorable outcome if they plead guilty than if they go to trial. The extent to which pleas reflect fair or rational compromises in practice, however, depends upon a variety of factors, including the amount of information each of the parties has about the case. Some level of informational symmetry therefore is critical to the …

Poetic (In)Justice? Rap Music Lyrics As Art, Life, And Criminal Evidence, Andrea L. Dennis

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Courts routinely admit defendant-authored rap music lyrics as substantive evidence in the adjudication of criminal cases. In doing so, courts fail to recognize that rap music lyrics are art. Rather, judges view the interpretation of rap music lyrics as a subject of common knowledge, interpret the defendant's lyrics literally, and characterize lyrics as autobiographical depictions of actual events. In making admissibility decisions, courts must give consideration to the social constraints and artistic conventions impacting the composition and interpretation of rap music lyrics. More particularly, they must understand the commercialized nature of the rap music industry, artist claims of authenticity, and …

Evidentiary Wisdom And Blinders In Perspective: Thoughts On Misjudging, Elaine W. Shoben

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Empirical studies serve to enlighten the law, even when they simply confirm the wisdom of existing rules. Chris Guthrie's article, Misjudging, primarily serves that useful function—confirming the wisdom of existing rules—even though the author sought to establish something different. Guthrie's article applies insights from cognitive psychology to the resolution of legal disputes and presents some empirical proof of the effect of the application. He concludes that three sets of “blinders”—informational, cognitive, and attitudinal—affect the ability of judges to reach correct resolutions of disputes. He therefore recommends further appreciation of the ability of arbitration and mediation to avoid some of the …

Wild Dreamers: Meditation On The Admissibility Of Dream Talk, Louise Harmon

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No abstract provided.

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

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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 …

The Canyon Of Doubt: John William Corrington's The Risi's Wife, Louise Harmon

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No abstract provided.

Recent Case Developments, Jeffrey W. Stempel

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Recent case developments in Insurance Law in the years 1999 and 2000.

The Business Records Exception To The Hearsay Rule - New Is Not Necessarily Better, Sidney Kwestel

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No abstract provided.

Etchings On Glass: Reflections On The Science Of Proof, Louise Harmon

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No abstract provided.

The Supreme Court's Decision To Recognize A Psychotherapist Privilege In Jaffee V. Redmond, 116 S. Ct. 1923 (1996): The Meaning Of The Term 'Experience' And The Role Of 'Reason' Under Federal Rule Of Evidence 501, Diane Marie Amann, Edward J. Imwinkelried

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In Jaffee v. United States, 116 S. Ct. 1923 (1996), the U.S. Supreme Court recognized a testimonial privilege protecting the patient-psychotherapist relationship. Its decision is based on Rule 501 of the Federal Rules of Evidence, which permits courts to decide novel questions of privilege in the light of reason and experience. The Court held that this rule authorized not only recognition of a new privilege, but also a privilege of a broad scope, extending to relationships between patients and licensed clinical social workers. Its decision came as a mild surprise, given a widely shared assumption that Rule 501 creates a …

Admissibility Of Investigatory Reports In § 1983 Civil Rights Actions - A User's Manual, Martin A. Schwartz

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No abstract provided.

Brown And The Doctrine Of Precedent: A Concurring Opinion, Thomas B. Mcaffee

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This article is part of a symposium sponsored by Southern Illinois University regarding Brown v. Board of Education. In this article, the author addresses the question of what opinion he would have written had he been a justice on the U.S. Supreme Court when the case was decided.

The author indicates he would have concurred in those opinions finding a violation of the Equal Protection Clause of the Fourteenth Amendment in Brown v. Board of Education. The author finds persuasive the argument that any other decision would permit states to evade the core purpose of the Fourteenth Amendment. Nevertheless, …

The Treachery Of Perception: Evidence And Experience In Clarissa, Judy Cornett

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No abstract provided.

Punitive Damages--Developments In Section 1983 Cases, Eileen Kaufman, Martin A. Schwartz

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No abstract provided.

The Proper Role Of After-Acquired Evidence In Employment Discrimination Litigation, Rebecca White, Robert D. Brussack

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A new defense to employment discrimination claims has gained acceptance in the lower courts. Employers who allegedly have discriminated against their employees because of race, sex or age are winning judgments on the basis of after-acquired evidence of employee misconduct. The evidence is “after-acquired” in the sense that the misconduct was unknown to the employer at the time the alleged discrimination occurred but was acquired later, often through the use of discovery devices in the employee's discrimination action. Lower courts have accepted the proposition that if the employer would have discharged the plaintiff on the basis of the after-acquired evidence, …

The Common Law Theory Of Experts: Deference Or Education?, Joseph S. Miller, Ronald J. Allen

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What if witness testimony emerges from, or can only be understood by reference to, an experience that the fact finder lacks? Or what if the connection between what a witness says and the full import of what the witness means is so arcane that the chances are virtually zero that the jury will understand what the spoken words are intended to convey? Both cases arise surprisingly frequently in the trial of disputes. For example, the problem arises whenever a witness is not fluent in English, as it often does when the common practice of a business or trade plays a …

In Defense Of A Constitutional Theory Of Experts, Ronald L. Carlson

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Professor Ronald Allen honors the memory of John Henry Wigmore on virtually every occasion in which he targets an aspect of evidence law for scholarly study. As Wigmore Professor of Law, Allen has consistently afforded modern evidence specialists some of the best in provocative theory as grist for review and discussion. He now places experts in his sights, and the results are no less stimulating.

Credulous Courts And The Tortured Trilogy: The Improper Use Of Summary Judgment In Title Vii And Adea Cases, Ann C. Mcginley

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Civil rights are under siege. In mid-1989, the United States Supreme Court decided several cases that severely limit the civil rights claims and remedies available to a plaintiff claiming employment discrimination. This Article examines the gradual and continuing erosion of the factfinder's role in federal employment discrimination cases and its replacement by an increasing use of summary judgment through which the courts make pretrial determinations formerly reserved for the factfinder at trial. This trend not only represents a major shift in court procedure and, in the case of age discrimination claims, a transfer of power from juries to judges, but …

Experts As Hearsay Conduits: Confrontation Abuses In Opinion Testimony, Ronald L. Carlson

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The dispute over whether litigants may use experts to run unexamined hearsay into the trial record is a microcosm of a larger debate. The larger question is whether judicial review of expert testimony should be passive, or whether the expert witness process should be marked by active judicial policing. Does the plethora of expert opinions presently being offered in modern trials merit special scrutiny by the courts?

Some scholars urge that courts must accommodate experts. Proponents of this view favor few challenges to the unrestricted rendition of opinions by an expert, whether the expert is real or self-proclaimed. Under this …