Open Access. Powered by Scholars. Published by Universities.®
- Discipline
-
- Evidence (52)
- Criminal Procedure (19)
- Litigation (14)
- Science and Technology Law (12)
- Intellectual Property Law (10)
-
- Civil Procedure (9)
- Criminal Law (9)
- Computer Law (8)
- Law and Psychology (7)
- Internet Law (6)
- Courts (5)
- Family Law (3)
- Judges (3)
- State and Local Government Law (3)
- Civil Rights and Discrimination (2)
- Constitutional Law (2)
- Disability Law (2)
- Legal Profession (2)
- Legal Studies (2)
- Medicine and Health Sciences (2)
- Social and Behavioral Sciences (2)
- Supreme Court of the United States (2)
- Antitrust and Trade Regulation (1)
- Applied Statistics (1)
- Business (1)
- Business Law, Public Responsibility, and Ethics (1)
- Business Organizations Law (1)
- Civil Law (1)
- Conflict of Laws (1)
- Institution
-
- Cornell University Law School (15)
- Santa Clara Law (9)
- University of Michigan Law School (5)
- University of Colorado Law School (4)
- Florida State University College of Law (3)
-
- Fordham Law School (3)
- New York Law School (3)
- St. Mary's University (3)
- University of Baltimore Law (3)
- Vanderbilt University Law School (3)
- Columbia Law School (2)
- Georgetown University Law Center (2)
- Maurer School of Law: Indiana University (2)
- University of Arkansas at Little Rock William H. Bowen School of Law (2)
- University of Georgia School of Law (2)
- American University Washington College of Law (1)
- Boston University School of Law (1)
- Case Western Reserve University School of Law (1)
- Cleveland State University (1)
- George Washington University Law School (1)
- Georgia State University College of Law (1)
- Golden Gate University School of Law (1)
- Mitchell Hamline School of Law (1)
- Molloy University (1)
- Pace University (1)
- Touro University Jacob D. Fuchsberg Law Center (1)
- University of Cincinnati College of Law (1)
- University of Florida Levin College of Law (1)
- University of Maryland Francis King Carey School of Law (1)
- University of Miami Law School (1)
- Publication Year
- Publication
-
- Cornell Law Faculty Publications (15)
- Faculty Scholarship (9)
- Rosetta Stone v. Google (Joint Appendix) (9)
- Articles (5)
- Publications (5)
-
- All Faculty Scholarship (3)
- Articles & Chapters (3)
- Faculty Articles (3)
- Scholarly Publications (3)
- Scholarly Works (3)
- Vanderbilt Law School Faculty Publications (3)
- Articles by Maurer Faculty (2)
- Book Chapters (2)
- Georgetown Law Faculty Publications and Other Works (2)
- Alumni Publications (1)
- Articles in Law Reviews & Other Academic Journals (1)
- Elisabeth Haub School of Law Faculty Publications (1)
- Faculty Articles and Other Publications (1)
- Faculty Journal Articles & Other Writings (1)
- Faculty Works: Criminal Justice and Legal Studies (1)
- GW Law Faculty Publications & Other Works (1)
- Georgia Business Court Opinions (1)
- Law Faculty Articles and Essays (1)
- Maryland Law Review Online (1)
- Scholarly Articles (1)
- UF Law Faculty Publications (1)
Articles 1 - 30 of 79
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 …
The Consensus Rule: A New Approach To Scientific Evidence, Edward K. Cheng
The Consensus Rule: A New Approach To Scientific Evidence, Edward K. Cheng
Vanderbilt Law School Faculty Publications
Founded on good intentions but unrealistic expectations, the dominant Daubert framework for handling expert and scientific evidence should be scrapped. Daubert asks judges and jurors to make substantively expert determinations, a task they are epistemically incompetent to perform as laypersons. As an alternative, this Article proposes a new framework for handling expert evidence. It draws from the social and philosophical literature on expertise and begins with a basic question: How can laypersons make intelligent decisions about expert topics? From there, it builds its evidentiary approach, which ultimately results in an inference rule focused on expert communities. Specifically, when dealing with …
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 …
The Informed Consent Doctrine In Legal Malpractice Law, Vincent R. Johnson
The Informed Consent Doctrine In Legal Malpractice Law, Vincent R. Johnson
Faculty Articles
The doctrine of informed consent is now deeply embedded into the law of legal ethics. In legal malpractice litigation, the doctrine holds that a lawyer has a duty to disclose to a client material information about the risks and alternatives associated with a course of action. A lawyer who fails to make such required disclosures and fails to obtain informed consent is negligent, regardless of whether the lawyer otherwise exercises care in representing a client. If such negligent nondisclosures cause damages, the lawyer can be held accountable for the client's losses.
Shifting the focus of a legal malpractice action from …
Greenlife Energy Solutions Order Denying Defendants’ Motion To Strike Patterson’S Third Affidavit, Kelly Lee Ellerbee
Greenlife Energy Solutions Order Denying Defendants’ Motion To Strike Patterson’S Third Affidavit, Kelly Lee Ellerbee
Georgia Business Court Opinions
No abstract provided.
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.
Hipaa's Privacy Rule And State Privacy Laws: Roadblocks To Medical Organizations' Self-Policing Expert Medical Testimony, Miles J. Zaremski, Douglas M. Belofsky
Hipaa's Privacy Rule And State Privacy Laws: Roadblocks To Medical Organizations' Self-Policing Expert Medical Testimony, Miles J. Zaremski, Douglas M. Belofsky
Alumni Publications
As part of the wave of medical malpractice reforms over the last several decades, efforts were initiated to ensure the reliability and credibility of expert witness opinion and testimony, which is the sine qua non of necessary proof for any such claim or lawsuit. Governing bodies of professional medical organizations and societies have crafted rules and regulations for their members that wish to provide expert medical witness testimony. Where such testimony does not conform to these organizations’ standards, sanctions can be levied, including membership expulsion. Such self-policing has found favor with courts.
Before sanctions are imposed, however, necessary administrative investigations …
Introduction, Shari S. Diamond, Richard O. Lempert
Introduction, Shari S. Diamond, Richard O. Lempert
Articles
Experts bedeviled the legal system long before seventeenth-century Salem, when the town's good citizens relied on youthful accusers and witchcraft experts to identify the devil's servants in their midst. As in Salem, claims of expertise have often been questioned and objections raised about the bases of expert knowledge. Expertise, then and now, did not have to be based on science; but the importance of science and the testimony of scientific experts has since medieval times been woven into the fabric of the English jurisprudence that Americans inherited. In cases as long ago as 1299 we find examples of courts seeking …
Debunked, Discredited, But Still Defended: Why Prosecutors Resist Challenges To Bad Science And Some Suggestions For Crafting Remedies For Wrongful Conviction Based On Changed Science, Aviva A. Orenstein
Articles by Maurer Faculty
Flawed science has significantly contributed to wrongful convictions. Courts struggle with how to address such convictions when the mistaken science (such as bogus expert claims about the differences between accidental fires and intentionally set ones) significantly affected the guilty verdict but there is no DNA evidence to directly exonerate the accused. My short piece explores why prosecutors often defend bad science. Mistakes in science tend to serve the prosecution, but there are other more subtle factors that explain prosecutors’ reluctance to address flawed forensic testimony. Such reluctance may arise from fondness for the status quo and a resistance to subverting …
Expert Testimoney And Opinion Evidence In A Narcotics Prosecution, Robert Ewald
Expert Testimoney And Opinion Evidence In A Narcotics Prosecution, Robert Ewald
Faculty Works: Criminal Justice and Legal Studies
Courts in New York have admitted expert testimony when “it would help to clarify an issue calling for professional or technical knowledge, possessed by the expert and beyond the ken of a typical juror.” People v. DeLong 60 NY2d 296 (1983). More specifically, in making such a determination, the trial court must consider [1] “when jurors are able to draw conclusions from the evidence based upon their day-to-day experience, their common observation and their knowledge, [2] and when they would be benefited by the specialized knowledge of an expert witness.” Cronin at 433. The Court of Appeals has recognized that …
Mental Health Evaluations In Child Welfare Settings, Joshua B. Kay
Mental Health Evaluations In Child Welfare Settings, Joshua B. Kay
Book Chapters
This chapter will focus mainly on parenting capacity evaluations performed by psychologists, as these evaluations tend to be the most legally fraught type of assessment in a child protection proceeding. Often, assessments of parenting capacity inform important, difficult, and potentially contentious questions in the case, including whether to remove a child from a parent's custody or maintain a child in foster care; the frequency and conditions of parent-child visitation; recommended interventions to address parenting deficiencies or problems in the parent-child relationship; and whether and when termination of parental rights should be considered. Despite their central role in providing information that …
Representing Parents With Disabilities, Joshua B. Kay
Representing Parents With Disabilities, Joshua B. Kay
Book Chapters
Parents with disabilities are more likely than other parents to become involved in the child welfare system, and once involved, their cases are more likely to end in termination of parental rights. This chapter covers basic information about parents with disabilities and child welfare involvement, including the prevalence of disability among parents generally and the frequency with which parents with disabilities are involved in child welfare cases. It discusses why these parents are disproportionately involved in child welfare proceedings and the biases of professionals that contribute not only to this frequent involvement but also to the poor outcomes in many …
Burris V. State: Suggestions For The Continued Development Of The Rule For Admitting The Testimony Of Gang Experts, Michael Jacko
Burris V. State: Suggestions For The Continued Development Of The Rule For Admitting The Testimony Of Gang Experts, Michael Jacko
Maryland Law Review Online
No abstract provided.
Tender Is The Night: Should Your Expert Be?, Cynthia Ford
Tender Is The Night: Should Your Expert Be?, Cynthia Ford
Faculty Journal Articles & Other Writings
This article discusses the practice of tendering an expert for acceptance or certification by the court at trial in the presence of the jury. The article considers Tennessee and Montana state and federal evidence law. The author suggests that Montana courts and lawyers should comply with the A.B.A. Updated Civil Trial Standard 14 and let juries assess the testimony of a Rule 702 witness without a special designation accorded by the judge certifying a witness as an "expert" in his or her field.
Voice Identification Experts, Stephen A. Saltzburg
Voice Identification Experts, Stephen A. Saltzburg
GW Law Faculty Publications & Other Works
This article examines United States v. Schiro, 679 F.3d 521 (7th Cir. 2012) and the issue of reliability of voice identification or "earwitness identification." Given that mistaken eyewitness identification is a major contributor to wrongful convictions, courts should instruct jurors of the frequency of voice identification mistakes. In addition, jurors should be educated as to factors that promote or detract from accuracy. Jurors should be instructed to examine identification testimony carefully.
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 …
Excluding Expert Valuation Testimony, Wendy G. Gerzog
Excluding Expert Valuation Testimony, Wendy G. Gerzog
All Faculty Scholarship
In Boltar, a case in which the Tax Court addressed the valuation of a conservation easement, the court ruled on the admissibility of expert testimony.
Life Experience Matters, Wes R. Porter
Life Experience Matters, Wes R. Porter
Publications
The inter-generational tech knowledge gap presents a dilemma for the courts when distinguishing between lay opinion and expert testimony, explains Wes Porter of Golden Gate University School of Law.
Williams V. Illinois And The Confrontation Clause: Does Testimony By A Surrogate Witness Violate The Confrontation Clause?, Paul F. Rothstein, Ronald J. Coleman
Williams V. Illinois And The Confrontation Clause: Does Testimony By A Surrogate Witness Violate The Confrontation Clause?, Paul F. Rothstein, Ronald J. Coleman
Georgetown Law Faculty Publications and Other Works
This article comprises a four-part debate between Paul Rothstein, Professor of Law at Georgetown Law Center, and Ronald J. Coleman, who works in the litigation practice group at Cleary Gottlieb Steen & Hamilton LLP, on Williams v. Illinois, a Supreme Court case that involves the Confrontation Clause, which entitles a criminal defendant to confront an accusing witness in court. The issue at hand is whether said clause is infringed when a report not introduced into evidence at trial is used by an expert to testify about the results of testing that has been conducted by a non-testifying third party. …
Vol. Xxi, Tab 58 - Declaration Of Jennifer L. Spaziano In Support Of Rosetta Stone's Response To Google's Objections To Evidence And Motion To Strike, Jennifer Spaziano
Vol. Xxi, Tab 58 - Declaration Of Jennifer L. Spaziano In Support Of Rosetta Stone's Response To Google's Objections To Evidence And Motion To Strike, Jennifer Spaziano
Rosetta Stone v. Google (Joint Appendix)
Exhibits from the un-sealed joint appendix for Rosetta Stone Ltd., v. Google Inc., No. 10-2007, on appeal to the 4th Circuit. Issue presented: Under the Lanham Act, does the use of trademarked terms in keyword advertising result in infringement when there is evidence of actual confusion?
Vol. Ix, Tab 46 - Spaziano Declaration In Opposition To Google's Motion, Jennifer Spaziano
Vol. Ix, Tab 46 - Spaziano Declaration In Opposition To Google's Motion, Jennifer Spaziano
Rosetta Stone v. Google (Joint Appendix)
Exhibits from the un-sealed joint appendix for Rosetta Stone Ltd., v. Google Inc., No. 10-2007, on appeal to the 4th Circuit. Issue presented: Under the Lanham Act, does the use of trademarked terms in keyword advertising result in infringement when there is evidence of actual confusion?
Vol. Ix, Tab 44 - Rosetta Stone's Opposition To Google's Motion For Summary Judgment, Rosetta Stone
Vol. Ix, Tab 44 - Rosetta Stone's Opposition To Google's Motion For Summary Judgment, Rosetta Stone
Rosetta Stone v. Google (Joint Appendix)
Exhibits from the un-sealed joint appendix for Rosetta Stone Ltd., v. Google Inc., No. 10-2007, on appeal to the 4th Circuit. Issue presented: Under the Lanham Act, does the use of trademarked terms in keyword advertising result in infringement when there is evidence of actual confusion?
Vol. Ix, Tab 45 - Rosetta Stone's Opposition To Google's Motion For Summary Judgment, Rosetta Stone
Vol. Ix, Tab 45 - Rosetta Stone's Opposition To Google's Motion For Summary Judgment, Rosetta Stone
Rosetta Stone v. Google (Joint Appendix)
Exhibits from the un-sealed joint appendix for Rosetta Stone Ltd., v. Google Inc., No. 10-2007, on appeal to the 4th Circuit. Issue presented: Under the Lanham Act, does the use of trademarked terms in keyword advertising result in infringement when there is evidence of actual confusion?
Vol. Ix, Tab 42 - Declaration Of Cheryl Galvin, Cheryl Galvin
Vol. Ix, Tab 42 - Declaration Of Cheryl Galvin, Cheryl Galvin
Rosetta Stone v. Google (Joint Appendix)
Exhibits from the un-sealed joint appendix for Rosetta Stone Ltd., v. Google Inc., No. 10-2007, on appeal to the 4th Circuit. Issue presented: Under the Lanham Act, does the use of trademarked terms in keyword advertising result in infringement when there is evidence of actual confusion?
Vol. Xviii, Tab 55 - Google's Reply Memorandum Of Law In Further Support Of Its Motion To Exclude The Expert Report And Opinion Of Dr. Kent Van Liere, Google
Rosetta Stone v. Google (Joint Appendix)
Exhibits from the un-sealed joint appendix for Rosetta Stone Ltd., v. Google Inc., No. 10-2007, on appeal to the 4th Circuit. Issue presented: Under the Lanham Act, does the use of trademarked terms in keyword advertising result in infringement when there is evidence of actual confusion?
The Tail Still Wags The Dog: The Pervasive And Inappropriate Influence By The Psychiatric Profession On The Civil Commitment Process, William Brooks
The Tail Still Wags The Dog: The Pervasive And Inappropriate Influence By The Psychiatric Profession On The Civil Commitment Process, William Brooks
Scholarly Works
The imposition of substantive and procedural protections in the civil commitment process thirty years ago created the expectation that courts would scrutinize commitment decisions by psychiatrists more closely and serve as a check on psychiatric decision-making. This has not happened.
Today, psychiatrists continue to play an overly influential role in the civil commitment process. Psychiatrists make initial commitment decisions that often lack accuracy because they rely on clinical judgment only. Furthermore, many psychiatrists do not want legal standards interfering with treatment decisions, and the nebulous nature of the concept of dangerousness enables doctors to make pretextual assessments of danger. At …
Vol. Ix, Tab 46 - Ex. 37 - Expert Report Of Dr. Kent D. Van Liere, Kent Van Liere
Vol. Ix, Tab 46 - Ex. 37 - Expert Report Of Dr. Kent D. Van Liere, Kent Van Liere
Rosetta Stone v. Google (Joint Appendix)
Exhibits from the un-sealed joint appendix for Rosetta Stone Ltd., v. Google Inc., No. 10-2007, on appeal to the 4th Circuit. Issue presented: Under the Lanham Act, does the use of trademarked terms in keyword advertising result in infringement when there is evidence of actual confusion?
Admissibility Of Scientific Evidence And Expert Testimony: One Potato, Two Potato, Daubert, Frye, Lynn Mclain
Admissibility Of Scientific Evidence And Expert Testimony: One Potato, Two Potato, Daubert, Frye, Lynn Mclain
All Faculty Scholarship
This handout from a Maryland Judicial Institute presentation covers the Maryland Rules concerning expert testimony and the ways they differ from the Federal Rules of Evidence.
Vol. Ix, Tab 43 - Google Memorandum In Support Of Its Motion To Exclude Expert Report And Opinion Of Dr. Kent Van Liere, Google
Rosetta Stone v. Google (Joint Appendix)
Exhibits from the un-sealed joint appendix for Rosetta Stone Ltd., v. Google Inc., No. 10-2007, on appeal to the 4th Circuit. Issue presented: Under the Lanham Act, does the use of trademarked terms in keyword advertising result in infringement when there is evidence of actual confusion?
The Witness Who Saw, He Left Little Doubt: A Comparative Consideration Of Expert Testimony In Mental Disability Law Cases, Michael L. Perlin, Astrid Birgden, Kris Gledhill
The Witness Who Saw, He Left Little Doubt: A Comparative Consideration Of Expert Testimony In Mental Disability Law Cases, Michael L. Perlin, Astrid Birgden, Kris Gledhill
Articles & Chapters
The question of how courts assess expert evidence - especially when mental disability is an issue - raises the corollary question of whether courts adequately evaluate the content of the expert testimony or whether judicial decision making may be influenced by teleology (‘cherry picking’ evidence), pretextuality (accepting experts who distort evidence to achieve socially desirable aims), and/or sanism (allowing prejudicial and stereotyped evidence). Such threats occur despite professional standards in forensic psychology and other mental health disciplines that require ethical expert testimony. The result is expert testimony that, in many instances, is at best incompetent and at worst biased. The …