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Articles 1 - 30 of 71
Full-Text Articles in Law
F.B.I. V. Fazaga: The Secret Of The State-Secrets Privilege, Rebecca Reeves
F.B.I. V. Fazaga: The Secret Of The State-Secrets Privilege, Rebecca Reeves
Duke Journal of Constitutional Law & Public Policy Sidebar
When the government successfully invokes the state-secrets privilege, it allows for evidence to be excluded from trial if making that evidence public would threaten national security. It is unclear, however, under what circumstances this privilege can be invoked, what happens when it is successfully invoked, and what occurs after the evidence is excluded. In Federal Bureau of Investigation v. Fazaga, the Supreme Court will have the opportunity to clarify the state-secrets privilege. Additionally, the Court will be asked to determine whether the Foreign Intelligence Surveillance Act of 1978 (FISA) displaces this privilege when the government invokes it regarding evidence …
Criminal Adjudication, Error Correction, And Hindsight Blind Spots, Lisa Kern Griffin
Criminal Adjudication, Error Correction, And Hindsight Blind Spots, Lisa Kern Griffin
Faculty Scholarship
Concerns about hindsight in the law typically arise with regard to the bias that outcome knowledge can produce. But a more difficult problem than the clear view that hindsight appears to provide is the blind spot that it actually has. Because of the conventional wisdom about error review, there is a missed opportunity to ensure meaningful scrutiny. Beyond the confirmation biases that make convictions seem inevitable lies the question whether courts can see what they are meant to assess when they do look closely for error. Standards that require a retrospective showing of materiality, prejudice, or harm turn on what …
The First Complaint: An Approach To The Admission Of Child-Hearsay Statements Under The Alaska Rules Of Evidence, John J. Gochnour
The First Complaint: An Approach To The Admission Of Child-Hearsay Statements Under The Alaska Rules Of Evidence, John J. Gochnour
Alaska Law Review
No abstract provided.
Where And How To Draw The Line Between Reasonable Corporal Punishment And Abuse, Doriane Lambelet Coleman, Kenneth A. Dodge, Sarah Keeton Campbell
Where And How To Draw The Line Between Reasonable Corporal Punishment And Abuse, Doriane Lambelet Coleman, Kenneth A. Dodge, Sarah Keeton Campbell
Law and Contemporary Problems
No abstract provided.
“Letters I’Ve Written, Never Meaning To Send …”: Conditional Relevance, Evidence Rule 104(B), And Mark Edwards’ Curious Murder Trial, James Fayette, Stephanie Busalacchi
“Letters I’Ve Written, Never Meaning To Send …”: Conditional Relevance, Evidence Rule 104(B), And Mark Edwards’ Curious Murder Trial, James Fayette, Stephanie Busalacchi
Alaska Law Review
No abstract provided.
The Parliament Of The Experts, Adrian Vermeule
The Parliament Of The Experts, Adrian Vermeule
Duke Law Journal
In the administrative state, how should expert opinions be aggregated and used? If a panel of experts is unanimous on a question of fact, causation, or prediction, can an administrative agency rationally disagree, and on what grounds? If experts are split into a majority view and a minority view, must the agency follow the majority? Should reviewing courts limit agency discretion to select among the conflicting views of experts, or to depart from expert consensus? I argue that voting by expert panels is likely, on average, to be epistemically superior to the substantive judgment of agency heads, in determining questions …
Irreconcilable Differences? The Troubled Marriage Of Science And Law, Susan Haack
Irreconcilable Differences? The Troubled Marriage Of Science And Law, Susan Haack
Law and Contemporary Problems
There haven't always been scientific witnesses: in fact, there haven't always been witnesses. In early medieval times, courts relied on tests by oath, ordeal, and sometimes by combat. Here, Haack provides a brief historical background to the use of scientific experts in law and then proceeds to discuss in greater detail the values underlying scientific inquiry, the uncertainty in the quest of knowledge and understanding, and the methods by which consensus is reached, even if that consensus is always tentative. She then contrasts scientific inquiry with the law's quest for "truth" in the courtroom and, particularly, the normative and temporal …
How Does Science Come To Speak In The Courts? Citations Intertexts, Expert Witnesses, Consequential Facts, And Reasoning, Charles Bazerman
How Does Science Come To Speak In The Courts? Citations Intertexts, Expert Witnesses, Consequential Facts, And Reasoning, Charles Bazerman
Law and Contemporary Problems
Citations, in their highly conventionalized forms, visibly indicate each texts explicit use of the prior literature that embodies the knowledge and contentions of its field. This relation to prior texts has been called intertextuality in literary and literacy studies. Here, Bazerman discusses the citation practices and intertextuality in science and the law in theoretical and historical perspective, and considers the intersection of science and law by identifying the judicial rules that limit and shape the role of scientific literature in court proceedings. He emphasizes that from the historical and theoretical analysis, it is clear that, in the US, judicial reasoning …
Trials And Tribulations: What Happens When Historians Enter The Courtroom, David Rosner
Trials And Tribulations: What Happens When Historians Enter The Courtroom, David Rosner
Law and Contemporary Problems
In recent years, historians have been brought into legal cases in unprecedented numbers. As the courts have tried to adjudicate responsibility for environmental and occupational diseases, history has played an increasingly central role in decisions that affect the cases themselves and in social policy regarding risk. In suits over tobacco-related diseases, asbestosis, radiation, and other toxic substances, more historians of technology and science, social history, and public health are being sought to provide testimony aimed at assessing responsibility for damages that have arisen years--sometimes decades--after exposure. Here, Rosner traces the use of historians as experts in litigation.
Essay: Conventions In Science And In The Courts: Images And Realities, Jerome R. Ravetz
Essay: Conventions In Science And In The Courts: Images And Realities, Jerome R. Ravetz
Law and Contemporary Problems
No abstract provided.
Merton And The Hot Tub: Scientific Conventions And Expert Evidence In Australian Civil Procedure, Gary Edmond
Merton And The Hot Tub: Scientific Conventions And Expert Evidence In Australian Civil Procedure, Gary Edmond
Law and Contemporary Problems
Recently in Australia, common-law judges began to modify the way expert evidence is prepared and presented. Judges from a range of civil jurisdictions have conscientiously sought to reduce expert partisanship and the extent of expert disagreement in an attempt to enhance procedural efficiency and improve access to justice. One of these reforms, concurrent evidence, enables expert witnesses to participate in a joint session with considerable testimonial latitude. This represents a shift away from an adversarial approach and a conscientious attempt to foster scientific values and norms. Here, Edmond describes how changes to Australian civil procedure, motivated by judicial concerns about …
The Arts Of Persuasion In Science And Law: Conflicting Norms In The Courtroom, Herbert M. Kritzer
The Arts Of Persuasion In Science And Law: Conflicting Norms In The Courtroom, Herbert M. Kritzer
Law and Contemporary Problems
Epistemology is important in the debate about science and technology in the courtroom. The epistemological issues and the arguments about them in the context of scientific and technical evidence are now well developed. Of equal importance, though, is an understanding of norms of persuasion and how those norms may differ across disciplines and groups. Norms of persuasion in the courtroom and in legal briefs differ from norms at a scientific conference and in scientific journals. Here, Kritzer examines the disconnect between science and the courtroom in terms of the differing norms of persuasion found within the scientific community and within …
Science, Law And The Expert Witness, Joseph Sanders
Science, Law And The Expert Witness, Joseph Sanders
Law and Contemporary Problems
Expert witnessing is a particularly useful place to observe the clash of legal and scientific conventions because it is here that one group of people (scientific experts) who are integrated into one set of conventions are challenged by the expectations of a different set of conventions. Here, Sanders looks at how legal conventions affect the behavior of expert witnesses when they appear in court in both criminal and civil cases. He also reviews differences in scientific and legal conventions as they apply to expert knowledge and discusses two central reasons for these differences: adversarialism and closure.
How Much Evidence Is Enough? Conventions Of Causal Inference, David Kriebel
How Much Evidence Is Enough? Conventions Of Causal Inference, David Kriebel
Law and Contemporary Problems
One of the most important issues for science in the courtroom is the determination of causality. Like science in the courtroom, science in the regulatory arena can also bring a clash of cultures, misunderstanding, and controversy--especially when decisions must be made with some urgency with interested parties watching closely. Here, Kriebel discusses some conventions in the conduct of science and in the ways that scientific information is communicated to nonscientists that can make it difficult for judges, lawyers, regulators, and politicians to do their jobs making decisions about complex environmental and health issues.
Policing The Corporate Citizen: Arguments For Prosecuting Organizations, Daniel L. Cheyette
Policing The Corporate Citizen: Arguments For Prosecuting Organizations, Daniel L. Cheyette
Alaska Law Review
No abstract provided.
Dimond, Not Daubert: Reviving The Discretionary Standard Of Expert Admission In Alaska, Gregory R. Henrikson
Dimond, Not Daubert: Reviving The Discretionary Standard Of Expert Admission In Alaska, Gregory R. Henrikson
Alaska Law Review
No abstract provided.
Is It Wrong To Sue For Rape?, Tom Lininger
Is It Wrong To Sue For Rape?, Tom Lininger
Duke Law Journal
The title of this Article poses a rhetorical question. Of course it is not improper to site a rapist. The act of rape qualifies as a tort in all fifty states. Rape causes egregious injuries, both physical and psychological. The Supreme Court regards rape as the ultimate violation of personal autonomy. Other than homicide, no act is more plainly tortious. Yet the criminal justice system is surprisingly hostile to civil suits by rape survivors. Judges in criminal cases virtually always allow impeachment of accusers with evidence of civil suits against the alleged assailants or third parties. This Article surveys every …
Independent Judicial Research In The Daubert Age, Edward K. Cheng
Independent Judicial Research In The Daubert Age, Edward K. Cheng
Duke Law Journal
The Supreme Court's Daubert trilogy places judges in the unenviable position of assessing the reliability of often unfamiliar and complex scientific expert testimony. Over the past decade, scholars have therefore explored various ways of helping judges with their new gatekeeping responsibilities. Unfortunately, the two dominant approaches, which focus on doctrinal tests and external assistance mechanisms, have been largely ineffective. This Article advocates for a neglected but important method for improving scientific decisionmaking--independent judicial research. It argues that judges facing unfamiliar and complex scientific admissibility decisions can and should engage in independent library research to better educate themselves about the underlying …
Sexy Dressing Revisited: Does Target Dress Play A Part In Sexual Harassment Cases?, Theresa M. Beiner
Sexy Dressing Revisited: Does Target Dress Play A Part In Sexual Harassment Cases?, Theresa M. Beiner
Duke Journal of Gender Law & Policy
Feminists have been debating what constitutes appropriate female attire since the beginning of the feminist movement in the United States. Since the early 1990s, when Naomi Wolf's book The Beauty Myth was released, feminists, law professors, and popular culture critics have tried to understand women's dress in the present day. In spite of years of criticism of these beliefs, the bias this injects into rape trials, and even with the enactment of rape shield laws, this evidence still sneaks into rape cases. With this in mind, one would expect a similar phenomenon to occur in sexual harassment cases. As the …
Revisiting The Legal Link Between Genetics And Crime, Deborah W. Denno
Revisiting The Legal Link Between Genetics And Crime, Deborah W. Denno
Law and Contemporary Problems
In 1994, convicted murderer Stephen Mobley became a cause celebre when he appealed his death sentence before the Georgia Supreme Court in the case of Mobley v. State. Denno describes the potential implications arising from the high-profile case of Stephen Mobley. He sought to introduce a then-cutting-edge theory that violence could be based on a genetic or neurochemical abnormality as mitigating evidence during capital sentencing.
Behavioral Genetics Research And Criminal Dna Databases, D. H. Kaye
Behavioral Genetics Research And Criminal Dna Databases, D. H. Kaye
Law and Contemporary Problems
Kaye discusses DNA databanks and the potential use of such databanks for behavioral genetics research. He addresses the concern that DNA databanks serve as a limitless repository for future research and that the samples used in the databanks could be used for research into a crime gene.
Genetic Predictions Of Future Dangerousness: Is There A Blueprint For Violence?, Erica Beecher-Monas, Edgar Garcia-Rill
Genetic Predictions Of Future Dangerousness: Is There A Blueprint For Violence?, Erica Beecher-Monas, Edgar Garcia-Rill
Law and Contemporary Problems
Beecher-Monas and Garcia-Rill consider the unfortunate probability that behavioral genetics evidence will be misused to substantiate predictions of future dangerousness.
“Regulatory Daubert”: A Proposal To Enhance Judicial Review Of Agency Science By Incorporating Daubert Principles Into Administrative Law, Alan Charles Raul, Julie Zampa Dwyer
“Regulatory Daubert”: A Proposal To Enhance Judicial Review Of Agency Science By Incorporating Daubert Principles Into Administrative Law, Alan Charles Raul, Julie Zampa Dwyer
Law and Contemporary Problems
In Daubert v. Merrell Dow Pharmaceuticals Inc, the US Supreme Court empowered federal judges to reject irrelevant or unreliable scientific evidence. Daubert provides a suitable framework for reviewing the quality of agency science and the soundness of agency decisions consistent with the standards established for review of agency rulemakings under the Administrative Procedure Act.
On The Prospect Of “Daubertizing” Judicial Review Of Risk Assessment, Thomas O. Mcgarity
On The Prospect Of “Daubertizing” Judicial Review Of Risk Assessment, Thomas O. Mcgarity
Law and Contemporary Problems
Lawyers for companies subject to federal health, safety and environmental regulation hope that stringent substantive judicial review will relieve their clients of the burdens of much regulation without the need for troublesome legislative battles they seem unable to win. McGarity argues that assigning a Daubert-like (Daubert v. Merrell Dow Pharmaceuticals Inc) gatekeeper role to courts engaged in judicial review of agency risk assessments is a profoundly bad idea.
Hearsay Exceptions: Adjusting The Ratio Of Intuition To Psychological Science, John E. B. Myers, Ingrid Cordon, Simona Ghetti, Gail S. Goodman
Hearsay Exceptions: Adjusting The Ratio Of Intuition To Psychological Science, John E. B. Myers, Ingrid Cordon, Simona Ghetti, Gail S. Goodman
Law and Contemporary Problems
Myers explores hearsay exeptions by examining three exceptions: excited utterances, statements for purposes of diagnosis or treatment, and the residual hearsay exception. The focus is child declarants, and these exceptions play key roles in child abuse litigation.
Applying Suggestibility Research To The Real World: The Case Of Repeated Questions, Thomas D. Lyon
Applying Suggestibility Research To The Real World: The Case Of Repeated Questions, Thomas D. Lyon
Law and Contemporary Problems
One can discern two parallel trends in the law and the psychology of child witnesses. In the law, appellate courts are beginning to stem the once powerful movement to increase the acceptance of children's testimony and the admissibility of children's out-of-court statements. Lyon analyzes particular strands of each trend.
The Conundrum Of Children, Confrontation, And Hearsay, Richard D. Friedman
The Conundrum Of Children, Confrontation, And Hearsay, Richard D. Friedman
Law and Contemporary Problems
The adjudication of child abuse claims poses an excruciatingly difficult conundrum. In many cases, a large part of the problem is that the prosecution's case depends critically on the statement or testimony of a young child.
The Maturation And Disintegration Of The Hearsay Exception For Statements For Medical Examination In Child Sexual Abuse Cases, Robert P. Mosteller
The Maturation And Disintegration Of The Hearsay Exception For Statements For Medical Examination In Child Sexual Abuse Cases, Robert P. Mosteller
Law and Contemporary Problems
Mosteller examines the treatment of children as victims and witnesses in criminal trials, most frequently involving sexual abuse, over the last quarter of the twentieth century, and from that experience, to draw lessons. He also examines what has been learned about the hearsay exception for "statements for purposes of medical diagnosis of treatment."
Forensic Interviews Of Children: The Components Of Scientific Validity And Legal Admissibility, Nancy E. Walker
Forensic Interviews Of Children: The Components Of Scientific Validity And Legal Admissibility, Nancy E. Walker
Law and Contemporary Problems
The problems associated with assessments of children's reports of victimization in criminal proceedings came to national attention during the 1980s and 1990s in a series of highly publicized trials of daycare staff. Walker describes information that professionals need to know if they are to conduct valid interview of children in forensic contexts.
Child Witness Policy: Law Interfacing With Social Science, Dorothy F. Marsil, Jean Montoya, David Ross, Louise Graham
Child Witness Policy: Law Interfacing With Social Science, Dorothy F. Marsil, Jean Montoya, David Ross, Louise Graham
Law and Contemporary Problems
The number of children testifying in court has posed serious practical and legal problems for the judicial system. One problem confronting the courts is how to protect children from experiencing the psychological trauma resulting from face-to-face confrontation with a defendant who may have physically harmed the child or threatened future harm to the child.