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Articles 721 - 750 of 2259
Full-Text Articles in Law
Erie And The Rules Of Evidence, Edward K. Cheng
Erie And The Rules Of Evidence, Edward K. Cheng
Vanderbilt Law School Faculty Publications
Jay Tidmarsh offers an intriguing new test for drawing the allimportant line between procedure and substance for purposes of Erie. The Tidmarsh test is attractively simple, yet seemingly reaches the right result in separating out truly “procedural” rules from more substantive ones. Since I am not a proceduralist, in this Response I will leave the Tidmarsh test’s explanatory power and practical workability vis-à-vis general civil procedure rules to others more qualified than I. Instead, I want to focus on the implications of the Tidmarsh test for the Federal Rules of Evidence. Like others in the evidence world, I have long …
A Crisis In Federal Habeas Law, Eve Brensike Primus
A Crisis In Federal Habeas Law, Eve Brensike Primus
Reviews
Everyone recognizes that federal habeas doctrine is a mess. Despite repeated calls for reform, federal judges continue to waste countless hours reviewing habeas petitions only to dismiss the vast majority of them on procedural grounds. Broad change is necessary, but to be effective, such change must be animated by an overarching theory that explains when federal courts should exercise habeas jurisdiction. In Habeas for the Twenty-First Century: Uses, Abuses, and the Future of the Great Writ, Professors Nancy King and Joseph Hoffmann offer such a theory. Drawing on history, current practice, and empirical data, King and Hoffmann find unifying themes …
Images In/Of Law, Jessica Silbey
Images In/Of Law, Jessica Silbey
Faculty Scholarship
The proliferation of images in and of law lends itself to surprisingly complex problems of epistemology and power. Understanding through images is innate; most of us easily understand images without thinking. But arriving at mutually agreeable understandings of images is also difficult. Translating images into shared words leads to multiple problems inherent in translation and that pose problems for justice. Despite our saturated imagistic culture, we have not established methods to pursue that translation process with confidence. This article explains how images are intuitively understood and yet collectively inscrutable, posing unique problems for resolving legal conflicts that demand common and …
Session One: Using Forensic Medical Evidence In Court, Juan E. Mendez
Session One: Using Forensic Medical Evidence In Court, Juan E. Mendez
Scholarly Articles in Law Reviews & Journals
No abstract provided.
Trial Evidence 2011: Advocacy, Analysis, & Illustrations, Martin A. Schwartz, Deborah Jones Merritt, William G. Young
Trial Evidence 2011: Advocacy, Analysis, & Illustrations, Martin A. Schwartz, Deborah Jones Merritt, William G. Young
Touro Law Review
No abstract provided.
Response Essay: Some Observations On Professor Schwartz's "Foundation" Theory Of Evidence, Paul F. Rothstein
Response Essay: Some Observations On Professor Schwartz's "Foundation" Theory Of Evidence, Paul F. Rothstein
Georgetown Law Faculty Publications and Other Works
Professor David Schwartz's A Foundation Theory of Evidence posits an intriguing new way to look at Evidence. It asserts that offered evidence must meet a tripartite requirement before it can be relevant. The tripartite requirement is that the evidence must be "case-specific, assertive, and probably true." His shorthand for the tripartite requirement is that evidence must be "well founded." Hence, he calls his theory the "foundation theory of evidence" and claims this foundation notion is so central to evidence law that it eclipses in importance even relevance itself. The tripartite requirement inheres in the very concept of evidence and relevancy, …
Impeachment Methods Illustrated: Movies, Novels, And High Profile Cases, Martin A. Schwartz, John Nicodemo
Impeachment Methods Illustrated: Movies, Novels, And High Profile Cases, Martin A. Schwartz, John Nicodemo
Touro Law Review
No abstract provided.
Confrontation In Children's Cases: The Dimensions Of Limited Coverage, Robert P. Mosteller
Confrontation In Children's Cases: The Dimensions Of Limited Coverage, Robert P. Mosteller
Faculty Publications
No abstract provided.
Responding To Mccleskey And Batson: The North Carolina Racial Justice Act Confronts Racial Peremptory Challenges In Death Cases, Robert P. Mosteller
Responding To Mccleskey And Batson: The North Carolina Racial Justice Act Confronts Racial Peremptory Challenges In Death Cases, Robert P. Mosteller
Faculty Publications
No abstract provided.
Law, Economics, And The Burden(S) Of Proof, Eric L. Talley
Law, Economics, And The Burden(S) Of Proof, Eric L. Talley
Faculty Scholarship
This chapter presents an overview of the theoretical law and economics literature on the burden of proof within tort law. I begin by clarifying core legal definitions within this topic, demonstrating that the burden of proof actually refers to at least five doctrinal concepts that substantially overlap but are not completely interchangeable. I then provide a conceptual roadmap for analyzing the major extant contributions to this topic within theoretical law and economics, emphasizing three key dimensions that organize them: (a) where they fall in the positive-normative spectrum; (b) what type of underlying modeling framework they employ (ranging from decision theoretic …
A Pleading Problem: Seventh Circuit Decision In Swanson V. Citibank Illustrates The Unstable State Of Federal Pleading Standards In The Post-Iqbal Era, Trisha Chokshi
Northern Illinois University Law Review
Historically, courts have been a place where individuals could obtain justice and relief for their grievances. Ordinary people have used courts to desegregate schools, protect the environment, punish corporate misconduct, and preserve fundamental liberties. Citizen access to federal courts, however, has become much more difficult in recent years in the wake of two Supreme Court decisions: Bell Atlantic Corp. v. Twombly in 2001 and Ashcroft v. Iqbal in 2009, which raised the pleading standard a plaintiff must satisfy before her case can go to court. In civil litigation, a pleading serves as an individual’s key to the courthouse door. The …
Civil Practice And Procedure, John R. Walk, Andrew P. Sherrod
Civil Practice And Procedure, John R. Walk, Andrew P. Sherrod
University of Richmond Law Review
This article surveys recent significant developments in Virginia civil practice and procedure. Specifically, the article discusses opinions of the Supreme Court of Virginia from June 2010through June 2011 addressing civil procedure topics; significant amendments to the Rules of the Supreme Court of Virginia concerning procedural issues during the same period; and legislation enacted by the Virginia General Assembly during its 2011 session that relates to civil practice.
Finding Evidence On Facebook, Jeffrey Bellin
Weaving Functional Brain Imaging Into The Tapestry Of Evidence: A Case For Functional Neuroimaging In Federal Criminal Courts, Adam Teitcher
Weaving Functional Brain Imaging Into The Tapestry Of Evidence: A Case For Functional Neuroimaging In Federal Criminal Courts, Adam Teitcher
Fordham Law Review
Recent advances in brain imaging technologies allow researchers to "peer inside" a defendant's brain. Although functional neuroimaging evidence is frequently used in civil litigation, federal courts have been hesitant to admit it into evidence in criminal trials. Scholars and commentators alike continue to debate the merits, detriments, and general admissibility of functional neuroimaging evidence in the criminal context. Meanwhile, federal judges repeatedly admit various forms of forensic science into evidence without evaluating them under the appropriate admissibility standards. This Note argues that this has created a double standard for evidence admissibility. Functional neuroimaging evidence may, in fact, be more scientifically …
Appellate Division, Second Department: People V. Rodriguez, Michael J. Puma
Appellate Division, Second Department: People V. Rodriguez, Michael J. Puma
Touro Law Review
No abstract provided.
More On The Impeachment Of Criminal Defendants, Jeffrey Bellin
More On The Impeachment Of Criminal Defendants, Jeffrey Bellin
Popular Media
No abstract provided.
Diagnosing Liability : The Legal History Of Posttraumatic Stress Disorder, Deirdre M. Smith
Diagnosing Liability : The Legal History Of Posttraumatic Stress Disorder, Deirdre M. Smith
Faculty Publications
This Article examines the origins of the unique relationship between the psychiatric diagnosis Posttraumatic Stress Disorder (PTSD) and the law and considers the implications of that relationship for contemporary uses of the diagnosis in legal settings. PTSD stands apart from all other diagnoses in psychiatry 's standard classification system, the Diagnostic and Statistical Manual of Mental Disorders (DSM} , and is the focus of significant controversy within psychiatry, because its diagnostic criteria require a determination of causation. By diagnosing a person with PTSD, a clinician necessarily assigns responsibility to a specific event or agent for causing the person 's symptoms, …
Plea Bargaining, Discovery, And The Intractable Problem Of Impeachment Disclosures, R. Michael Cassidy
Plea Bargaining, Discovery, And The Intractable Problem Of Impeachment Disclosures, R. Michael Cassidy
Vanderbilt Law Review
Several recent high-profile cases have illustrated flaws with the government's discovery practices in criminal cases and have put prosecutors across the country on the defensive about their compliance with disclosure obligations. The conviction of former Alaska Senator Ted Stevens on ethics charges was set aside after it was revealed that federal prosecutors withheld notes of an interview with a key government witness; one member of the Stevens prosecution team who was under investigation for contempt subsequently committed suicide. The Supreme Court remanded a double murder case from Tennessee for potential resentencing after it was revealed that state prosecutors had withheld …
More On The Future Of Present Sense Impressions, Jeffrey Bellin
More On The Future Of Present Sense Impressions, Jeffrey Bellin
Popular Media
No abstract provided.
The Usefulness Of . . . Evidence, Jeffrey Bellin
The Evidentiary Significance Of “Tweets,” Texts And Status Updates (Starring Justin Bieber), Jeffrey Bellin
The Evidentiary Significance Of “Tweets,” Texts And Status Updates (Starring Justin Bieber), Jeffrey Bellin
Popular Media
No abstract provided.
Unpredictable And Inconsistent: Nevada's Expert Witness Standard After Higgs V. State, Ryan A. Henry
Unpredictable And Inconsistent: Nevada's Expert Witness Standard After Higgs V. State, Ryan A. Henry
Nevada Law Journal
No abstract provided.
Rule 609 And The Frustratingly Unkillable Five-Factor Mahone Framework, Jeffrey Bellin
Rule 609 And The Frustratingly Unkillable Five-Factor Mahone Framework, Jeffrey Bellin
Popular Media
No abstract provided.
"Introduction" (Chapter 1) Of Stories About Science In Law: Literary And Historical Images Of Acquired Expertise (Ashgate 2011), David S. Caudill
"Introduction" (Chapter 1) Of Stories About Science In Law: Literary And Historical Images Of Acquired Expertise (Ashgate 2011), David S. Caudill
Working Paper Series
This is the introductory chapter of Stories About Science in Law: Literary and Historical Images of Acquired Expertise (Ashgate, 2011), explaining that the book presents examples of how literary accounts can provide a supplement to our understanding of science in law. Challenging the view that law and science are completely different, I focus on stories that explore the relationship between law and science, and identify cultural images of science that prevail in legal contexts. In contrast to other studies on the transfer and construction of expertise in legal settings, the book considers the intersection of three interdisciplinary projects-- law and …
Lawyers Judging Experts: Oversimplifying Science And Undervaluing Advocacy To Construct An Ethical Duty?, David S. Caudill
Lawyers Judging Experts: Oversimplifying Science And Undervaluing Advocacy To Construct An Ethical Duty?, David S. Caudill
Working Paper Series
My focus is on an apparent trend at the intersection of the fields of evidentiary standards for expert admissibility and professional responsibility, namely the eagerness to place more ethical responsibilities on lawyers to vet their proffered expertise to ensure its reliability. My reservations about this trend are not only based on its troubling implications for the lawyer’s duty as a zealous advocate, which already has obvious limitations (because of lawyers’ conflicting duties to the court), but are also based on the problematic aspects of many reliability determinations. To expect attorneys—and this is what the proponents of a duty to vet …
Vol. 2 No. 1, Spring 2011; Nolan & Ready--"Settling" For Less Than Perfect In Illinois When Determining The Role Defendants Play In The Litigation After They Settle, Benjamin W. Meyer
Vol. 2 No. 1, Spring 2011; Nolan & Ready--"Settling" For Less Than Perfect In Illinois When Determining The Role Defendants Play In The Litigation After They Settle, Benjamin W. Meyer
Northern Illinois Law Review Supplement
This Note examines the interplay of two decisions made by the Illinois Supreme Court during their 2008 – 2009 term—Ready v. United/Goedecke Services, Inc. and Nolan v. WEIL-McLain. Interpreting the statutory wording of the Illinois joint and several liability statute (735 ILCS 5/2-1117), Ready held that settled defendants may not be included on jury verdict forms when apportioning fault. The later decided Nolan held that a defendant may submit evidence of settled defendants in support of his sole proximate cause defense. This Note points out that the Nolan decision renders the Ready decision unworkable, because once a jury is exposed …
Protect Me From Myself: Determining Competency To Waive The Right To Counsel During Civil-Commitment Proceedings In Washington State, Jacob J. Stender
Protect Me From Myself: Determining Competency To Waive The Right To Counsel During Civil-Commitment Proceedings In Washington State, Jacob J. Stender
Seattle University Law Review
This Comment argues that an unarticulated, heightened standard of competency to waive counsel, under which Washington currently operates, is the ideal standard to address the unique concerns that exist in civil- commitment proceedings. This Comment clarifies the existing law governing the determination of a party’s right to waive counsel, as well as the determination of the validity of such a waiver. This Comment also articulates a comprehensive inquiry standard for trial courts, both within and outside of Washington, to apply when determining the competency of a party and the validity of a waiver. The goal of this express determination standard …
An Economic Analysis Of Fact Witness Payment, Eugene Kontorovich, Ezra Friedman
An Economic Analysis Of Fact Witness Payment, Eugene Kontorovich, Ezra Friedman
Faculty Working Papers
In this paper we discuss the disparate treatment of perceptual (''fact'') witnesses and expert witnesses in the legal system. We highlight the distinction between the perceptual act of witnessing and the act of testifying, and argue that although there might be good reasons to regulate payments to fact witnesses, the customary prohibition on paying them for their services is not justified by reference to economic theory. We propose considering a court mediated system for compensating fact witnesses so as to encourage witnessing of legally important events.We construct a simple model of witness incentives, and simulate the effects of several possible …
The Need For A Research Culture In The Forensic Sciences, Jonathan Koehler, Jennifer L. Mnookin, Simon A. Cole, Barry A.J. Fisher, Itiel E. Dror, Max Houck, Kieth Inman, David H. Kaye, Glenn Langenburg, D. Michel Risinger, Norah Rudin, Jay Siegel
The Need For A Research Culture In The Forensic Sciences, Jonathan Koehler, Jennifer L. Mnookin, Simon A. Cole, Barry A.J. Fisher, Itiel E. Dror, Max Houck, Kieth Inman, David H. Kaye, Glenn Langenburg, D. Michel Risinger, Norah Rudin, Jay Siegel
Faculty Working Papers
The methods, techniques, and reliability of the forensic sciences in general, and the pattern identification disciplines in particular, have faced significant scrutiny in recent years. Critics have attacked the scientific basis for the assumptions and claims made by forensic scientists both in and out of the courtroom. Defenders have emphasized courts' long-standing acceptance of forensic science evidence, the relative dearth of known errors, and the skill and experience of practitioners. This Article reflects an effort made by a diverse group of participants in these debates, including law professors, academics from several disciplines, and practicing forensic scientists, to find and explore …
What Will We Lose If The Trial Vanishes?, Robert P. Burns
What Will We Lose If The Trial Vanishes?, Robert P. Burns
Faculty Working Papers
The number of trials continues to decline andfederal civil trials have almost completely disappeared. This essay attempts to address the significance of this loss, to answer the obvious question, "So what?" It argues against taking a resigned or complacent attitude toward an important problem for our public culture. It presents a short description of the trial's internal structure, recounts different sorts of explanations, and offers an inventory of the kinds of wounds this development would inflict.