Courts Commons^™

Squeezing Daubert Out Of The Picture, Richard D. Friedman

Articles

In this essay, I will offer some thoughts on how we might reframe the issues governing the admissibility of expert evidence. My principal focus is not on any particular type of expert evidence but on broader questions: the extent to which we ought to rely on rulings of admissibility, the standards that should govern admissibility rulings, and the role of the trial and appellate courts in making those rulings. To some extent, I will concentrate on the context of criminal cases, but for the most part my conclusions apply in both civil and criminal litigation. Here are my conclusions: First, …

Minimizing The Jury Over-Valuation Concern (Visions Of Rationality In Evidence Law Symposium), Richard D. Friedman

Articles

A great deal of the rhetoric of evidence discourse concerns the supposed cognitive inadequacies of the jury. In various contexts we are told that although an item of evidence is probative, it must be excluded because the jury will give it too much weight. I believe this approach has played far too great a role in evidentiary law, and that it is an interesting project to see whether we can construct a satisfactory body of law without relying at all on the cognitive inadequacy argument. I think that, at least to a large extent, we can. In some settings, where …

Confrontation As A Hot Topic: The Virtues Of Going Back To Square One, Richard D. Friedman

Articles

I have been working so obsessively on the accused's right to confront the witnesses against him 1 that I am gratified that the organizers of this conference have designated confrontation as one of the "hot topics" of Evidence law. I am not so egotistical as to think that my work has made confrontation into a hot topic; I am just glad to know that I am working where a good deal of action is, and that other scholars recognize that confrontation is an important area in which dramatic changes may be occurring.

Virtual Cross-Examination: The Art Of Impeaching Hearsay, John G. Douglass

Law Faculty Publications

Trial lawyers and judges are quite accustomed to courtroom battles over the admissibility of hearsay. But relatively few have much experience at challenging the credibility of hearsay. Once hearsay is admitted in evidence, even the ablest advocates typically proceed as if the hearsay battle were over, at least until the appeal. Few lawyers take advantage of the opportunities available to impeach the hearsay declarant. Consider the perspective of one experienced trial judge: I sometimes wonder at what seems to me the passing up of golden opportunities by the able advocate. Foremost among these lost opportunities is the virtual total neglect …

Quirin Revisited, Carl W. Tobias

Law Faculty Publications

Six decades ago, the U.S. Supreme Court decided Ex parte Quirin, in which the Justices determined that President Franklin Delano Roosevelt possessed the requisite constitutional authority to institute and use a military commission.

On November 13, 2001, President George W. Bush promulgated an Executive Order (Bush Order) that authorized the establishment and application of military commissions as well as purported to eliminate whatever jurisdiction federal courts might have by statute and to deny federal court access to individuals prosecuted or detained for terrorism. The Bush administration substantially premised that the Order and jurisdiction-stripping proviso on Ex parte Quirin. It has …

Justice Byron White And The Importance Of Process, Carl W. Tobias

Law Faculty Publications

Justice Byron White exhibited acute sensitivity to process during his exceptional career on the Supreme Court. This essay affords several illustrations of that characteristic. One was his perceptive account of the Court's responsibility for amending the rules which mainly govern federal district court practice. The second was careful stewardship of a federal appellate court study authorized by Congress after the jurist had resigned. Another was his persistent dissents from denials of petitions for Supreme Court review. These examples relate to the three levels in the federal judicial hierarchy, and demonstrate Justice White's abiding concern for each constituent and the whole …

Contractual Choice Of Law And The Prudential Foundations Of Appellate Review, David Frisch

Law Faculty Publications

What are the advantages and disadvantages of appellate review of trial court rulings on issues of foreign law? What exactly does judicial review of unsettled questions of foreign law accomplish? What is its price? These questions are of considerable theoretical interest and immense practical importance. Their resolution calls for inquiries into the allocation of judicial authority and in its production of outcomes in the real world. The discussion proceeds first by briefly describing in Part II some of the causes and effects of the steadily increasing caseloads in appellate courts. After demonstrating that these caseloads may soon become unmanageable, Part …

Nullification At Work? A Glimpse From The National Center For State Courts Study Of Hung Juries, Paula Hannaford-Agor, Valerie P. Hans

Faculty Publications

In 1998, the National Institute of Justice awarded a grant to the National Center for State Courts ("NCSC") to examine the frequency and various causes of hung juries. One of the factors that the NCSC project staff investigated was jurors' perceptions of the fairness of the law they were asked to apply in felony trials as well as jury and case characteristics that are often associated with jury nullification. The project also asked judges and other court actors to rate the strength of the evidence in the case. Thus, the project enabled researchers to examine jurors' views, the evidence, and …

Judicial Selection As War, Michael J. Gerhardt

Faculty Publications

No abstract provided.

The Evolution Of The United Nations Position On Terrorism: From Exempting National Liberation Movements To Criminalizing Terrorism Wherever And By Whomever Committed, Malvina Halberstam

Articles

No abstract provided.

Daubert Asks The Right Questions: Now Appellate Courts Should Help Find The Right Answers, Christopher B. Mueller

Publications

No abstract provided.

Unprincipled Punishment: The U.S. Sentencing Commission's Troubling Silence About The Purposes Of Punishment, Aaron J. Rappaport

Faculty Scholarship

No abstract provided.