Law Commons^™

The Supreme Court’S View Of Science: Has Daubert Exorcised The Certainty Demon?, Bert Black

Cardozo Law Review

The Supreme Court's mandate in Daubert that experts who give testimony based on science must confine themselves to valid scientific knowledge seems tautologically obvious, and hardly an issue requiring the attention of the nation's nine highest judges. The debate that led to Daubert was generated, however, by opponents of judicial screening who argued that holding experts to scientific standards somehow imposes an undue burden of proof on plaintiffs, especially in toxic tort cases - and the Supreme Court's decision has not put the issue completely to rest. Science, according to this "relaxed standards" argument, demands certainty far beyond the law's …

Daubert V. Merrell Dow Pharmaceuticals, Inc.: Epistemiology And Legal Process, Margaret G. Farrell

Cardozo Law Review

Justice Blackmun's majority opinion in Daubert v. Merrell Dow Pharmaceuticals, Inc. acknowledges that law and science have different goals, but it fails to recognize the implications of those differences for legal process. Recent increases in the scientifically-based claims brought in the federal courts, and in the size and complexity of the litigation in which such claims are made, have raised the stakes in the debate. At the same time, scientific concepts of relativity, uncertainty, and multiple causation are at odds with simple, legal notions about fact-finding and cause and effect. This disparity between legal and scientific understandings over the admission …

Conflict Resolution In The Courts: The Role Of Science, Anthony Z. Roisman

Cardozo Law Review

This Article is a philosophical examination of an issue that now engages many lawyers and scientists-the proper role of science in courtroom litigation. More specifically, the issue is this: In cases where expert testimony is useful to lay jurors in resolving factual issues, what is the proper role of a judge in restricting what sorts of experts can testify and what they can say?

"Solutions In Sciences Outside Of The Law!?" Rodriguez V. British Columbia (A.G.), Anne Jackman

Dalhousie Law Journal

While we are forced, somewhat begrudgingly, to face the fact that there are limitations to what medicine can achieve, we still seem to have an undisturbed faith in what law can achieve. The limitations to what litigation under the Canadian Charter of Rights and Freedoms' can achieve was highlighted most recently in the case of Rodriguez v. British Columbia (A.G.)2 where the Supreme Court of Canada, by a five to four margin, upheld the constitutionality of the assisted suicide provisions of the Criminal Code.3 The Court recognized that Ms. Rodriguez's rights were violated but concluded that the infringement did not …

Check Your Crystal Ball At The Courthouse Door, Please: Exploring The Past, Understanding The Present, And Worrying About The Future Of Scientific Evidence, David L. Faigman, Elise Porter, Michael J. Saks

Cardozo Law Review

Since the earliest days of the use of expert witnesses, judges (and more recently legislatures) have struggled to design the juridical intersection where law and science cross paths. The effort has not met with notable success. This situation could be changing, however. Last term, in Daubert v. Merrell Dow Pharmaceuticals, Inc., the Supreme Court adopted a novel approach to the age-old problem of scientific evidence. The -Court determined that the Federal Rules of Evidence require scientific evidence to be scientifically valid before it enters the courtroom. The Court has served notice that experts should trade in their crystal balls …

After Daubert: Going Forward With Lessons From The Past, Marc S. Klein

Cardozo Law Review

Ground zero in the ongoing battle over scientific evidence in toxic tort cases has clearly shifted in light of Daubert v. Merrell Dow Pharmaceuticals, Inc. In that case, the Supreme Court settled at least two profound issues. One has immediate practical consequences, the other has important philosophical implications.

Lev V. Tel-Aviv-Jaffa Rabbinical Court, Aharon Barak, Dov Levin, Shlomo Levin

Translated Opinions

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]

Petitioner 1 and Respondent 3 were in divorce proceedings. In the context of a suit for marital reconciliation filed by Respondent 3, he requested that Respondent 1 prevent Petitioner 1 from leaving the country. His request was granted. Petitioner 1 requested that the order be vacated because her trip was intended as a vacation with her eldest daughter as well as for conducting business …

Peace Vs. Accountability In Bosnia, Anthony D'Amato

Faculty Working Papers

Hovering over the peace negotiations in progress in former Yugoslavia is the international community's determination to bring to trial as war criminals those political and military leaders responsible for atrocities in Bosnia. The question clearly presented is that, however desirable the idea of war crimes accountability might appear in the abstract, pursuing the goal of a war crimes tribunal may simply result in prolonging a war of civilian atrocities. Is it not conceivable that, in return for securing a peace treaty, the UN officials may have extended some assurance to the leaders in former Yugoslavia that, one way or another, …

General Legislation, S. Barrow, E. D'Angelo

California Regulatory Law Reporter

No abstract provided.

A Brief Look At New York's Efforts To Codify Its Law Of Evidence, Barbara C. Salken

Touro Law Review

No abstract provided.

Testimonial Dinner: Hon. Warren E. Zittell, Columbia County Judge, Roger J. Miner '56

Tributes & Testimonials

No abstract provided.

Supervisory Power Of The New York Courts, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

This Article discusses the role of supervisory power in the judicial culture of New York. In order to place supervisory power in a context, Part II outlines the emergence and decline of supervisory power in the federal system. Part III then traces the origin of supervisory power in New York to Cardozo's dictum in Lemon. Part IV explains how supervisory power is an aspect of the much broader inherent judicial power, which finds expression in the familiar common law decision-making process. Part V discusses three principal areas in which supervisory power has been exercised by New York courts since Cardozo: …

Alternative Penal Sanctions, Paul Marcus

Faculty Publications

No abstract provided.

Predatory Pricing After Brooke Group: An Economic Perspective, Jonathan Baker

Scholarly Articles in Law Reviews & Journals

No abstract provided.

What Happens When Mediation Is Institutionalized?: To The Parties, Practitioners, And Host Institutions, James J. Alfini, John Barkai, Robert Baruch Bush, Michele Hermann, Jonathan Hyman, Kimberlee Kovach, Carol B. Liebman, Sharon Press, Leonard Riskin

Faculty Scholarship

The Alternative Dispute Resolution Section of the Association of American Law Schools presented a program, at the 1994 AALS Conference, on the institutionalization of mediation – through courtconnected programs and otherwise. The topic is an important one, because this phenomenon has become increasingly common in recent years. Moreover, the topic seemed especially appropriate for the 1994 program, since Florida – the host state for the conference – was one of the first states to adopt a comprehensive statute providing for court-ordered mediation (at the trial judge's option) in civil disputes of all kinds. The move toward institutionalizing mediation has raised …

Chaos And The Law Of Borrowed Servant: An Argument For Consistency, J. Dennis Hynes

Publications

No abstract provided.

French And American Judicial Opinions, Michael Wells

Scholarly Works

In this Article, I examine the foundations of American judicial form, in particular the proposition that powerful instrumental considerations support the issuance of reasoned opinions. This project proceeds from the belief that the form of judicial opinions deserves serious scholarly attention despite the broad consensus about its value, because it frames the terms of debate on every issue courts confront. My analysis is built on the view that critical insights into the nature of one's own legal system can be gleaned only by "understand[ing] what [one's] system is not," a task that requires putting aside the internal perspective of a …

Federalist Society Roundtable Discussion, Timothy Dyk, Robert Bork, Nadine Strossen, John O. Mcginnis, Theodore B. Olson

Articles

This discussion took place at the National Press Club in Washington, D.C., on October 12, 1993.

Legality, Standing And Substantive Review In Community Law, Paul Craig

Articles by Maurer Faculty

No abstract provided.

Character Evidence, James L. Kainen

Faculty Scholarship

No abstract provided.

Symposium Comparing New York And Federal Evidence Law: Introduction, Honorable George C. Pratt

Touro Law Review

No abstract provided.

The Supreme Court Rules On Statements Against Interest, Michael M. Martin

Touro Law Review

No abstract provided.

Distinctions Between The Public Records Exception To The Hearsay Rule In Federal And New York Practice, Randi M. Simanoff

Touro Law Review

No abstract provided.

Parallel Universes: Nepa Lessons For The New Property, Michael E. Herz

Articles

No abstract provided.

General Legislation, S. Barrow, E. D'Angelo

California Regulatory Law Reporter

No abstract provided.

Presidential Interpretation Of The Constitution, David A. Strauss

Cardozo Law Review

May the executive branch disagree with the Supreme Court's interpretation of the Constitution, and act in accordance with its own view? We tend to associate this question with a few great constitutional crises. Disputes between President Jackson and the Supreme Court over the Bank of the United States; between President Lincoln and the Court over slavery; and between President Franklin Roosevelt and the Court over New Deal legislation, all produced memorable statements by presidents claiming a broad power to act independently from the Court's decisions. The school desegregation controversy was between the Court and some state governments, not the President, …

Judicial Opinions As Binding Law And As Explanations For Judgments, Thomas W. Merrill

Cardozo Law Review

To what extent does the executive branch have autonomous powers of legal interpretation? The issue is often broadly framed in terms of two disparate understandings of the allocation of interpretative power: "judicial supremacy" and "departmentalism." In this paper, I shall speak of two different understandings of judicial opinions: the idea that judicial opinions (or at least the "holdings" of opinions) are legally binding on actors in the executive branch, and the idea that opinions are, from the perspective of executive actors, merely explanations for judicial judgments. I adopt this locution because it focuses more precisely on the core of the …

Imposing Unified Executive Branch Statutory Interpretation, Michael Herz

Cardozo Law Review

Since the birth of the administrative state, the dominant legal debate about the fourth branch has concerned the powers of the other three to control it. In recent years, the particular focus has been on presidential oversight, in part as a result of the increasingly systematic efforts of every President since Richard Nixon to gain control of the federal bureaucracy. This enormous, and in general, illuminating literature has tended, I think, to overlook two aspects of the problem.

Did She Mention My Name?: Citation Of Academic Authority By The Supreme Court Of Canada, 1985-1990, Vaughan Black, Nicholas Richter

Dalhousie Law Journal

Readers of court judgments will have observed that in the course of expressing reasons for the decisions they reach, judges commonly refer to books and articles written by academics. This is not surprising. Many scholarly publications contain information, arguments and opinions pertinent to the choices that judges must make, and lawyers commonly refer to such works in the written and oral arguments they present to courts. We would therefore expect the judges who must assess and respond to such arguments to make mention of that scholarly material. Moreover a certain portion of academic writing-in particular, a preponderance of law review …

Constitutional Review By The Executive In Foreign Affairs And War Powers: A Consequence Of Rational Choice In The Separation Of Powers, John O. Mcginnis

Articles

No abstract provided.