Evidence Commons^™

Unintended Consequences: The Posse Comitatus Act In The Modern Era, Mark P. Nevitt

Cardozo Law Review

America was born in revolution. Outraged at numerous abuses by the British crown - to include the conduct of British soldiers in the colonists' daily lives - Americans declared their independence, creating a new republic with deep suspicions of a standing army. These suspicions were intensely debated at the time of the nation's formation and enshrined in the Constitution. But congressional limitations on the role of the military in day-to-day affairs would have to wait. This did not occur until after the Civil War when Southern congressmen successfully coopted the framers' earlier concerns of a standing army and passed a …

Death By Daubert: The Continued Attack On Private Antitrust, Christine P. Bartholomew

Cardozo Law Review

In 2011, with five words of dicta, the Supreme Court opened Pandora's Box for private antitrust enforcement. By suggesting trial courts must evaluate the admissibility of expert testimony at class certification, the Court placed a significant obstacle in the path of antitrust class actions. Following the Supreme Court's lead, most courts now permit parties to bring expert challenges far earlier than the traditional summary judgment or pre-trial timing. Premature rejection of expert testimony dooms budding private antitrust suits - cases that play an essential role in modern antitrust enforcement. The dangers for private antitrust plaintiffs are compounded by the Court's …

If Hard Drugs Were Legalized, Would More People Use Them?, David Borden

Cardozo Public Law, Policy & Ethics Journal

The article argues that criminal prohibition of drugs, including heroin, cocaine, and marijuana, causes significant harms such as public health crises, violent criminal activity, and civil liberties violations. It challenges predictions that legalization would lead to greatly increased drug use or harm, citing evidence that other factors, such as availability and social stigma, play a larger role in drug use decisions. The author advocates for ending prohibition and replacing it with regulation and public health programs tailored to each drug, emphasizing that legalization could reduce both individual and societal harm.

Cultural Pluralism In Criminal Defense: An Inner Conflict Of The Liberal Paradigm, Sam Beyea

Cardozo Public Law, Policy & Ethics Journal

The note critically examines the cultural defense in American jurisprudence, highlighting its controversial role in criminal cases. While proponents argue that it promotes individualized justice in a diverse society, critics contend that it undermines legal equality, perpetuates stereotypes, and erodes the moral and deterrent functions of criminal law. The analysis explores the tension between cultural plurality and the universal application of legal principles, ultimately advocating for a more constrained approach to the use of cultural evidence in criminal proceedings.

Disparate Treatment Of Disparate Treatment: Harmonizing Title Vii Pretext And Mixed-Motive Jury Instruction Causation Standards In Light Of Staub V. Memorial Hospital, Eric Rosoff

Cardozo Law Review

No abstract provided.

Remaking Mexico: Law Reform As Foreign Policy, Deborah M. Weissman

Cardozo Law Review

No abstract provided.

An Uncertain Privilege: Reexamining Garner V. Wolfinbarger And Its Effect On Attorney-Client Privilege, Benjamin Cooper

Cardozo Law Review

No abstract provided.

Bridging The Cellular Divide: A Search For Consensus Regarding Law Enforcement Access To Historical Cell Data, Zachary Ross

Cardozo Law Review

No abstract provided.

The Time Has Come For A Restatement Of Child Sex Abuse, Marci A. Hamilton

Articles

No abstract provided.

Frcp 26 Vs. Fre 408: Why Settlement Negotiations Should Be Privileged Against Third-Party Discovery, Andrew Sher

Cardozo Journal of Conflict Resolution

This Note proposes that courts should recognize a settlementnegotiation privilege because it will incentivize parties to settle. Settling disputes is beneficial to the judicial system as it is more efficient and effective at resolving disputes than trying cases. Recognizing a settlement-negotiation privilege will increase the number of settlements by avoiding the free-rider problem that the Federal Circuit's approach in In re MSTG will create. Similarly, creating a settlement-negotiation privilege will avoid the uncertainty caused by not recognizing a privilege or requiring heightened standards for discovery. The confidentiality and certainty of a settlement-negotiation privilege will encourage parties to settle as well …

Thinking Outside The Box: Limiting The Collection Of Rape Kit Evidence In Acquaintance Rape Trials, Taylor Gamble

Cardozo Journal of Equal Rights & Social Justice

The note argues that limiting the collection of rape kit evidence in acquaintance rape cases could strike a balance between reducing victim trauma, conserving resources, and maintaining the integrity of the justice system. While DNA evidence is crucial in stranger rape cases, its utility in acquaintance rapes is limited since the central issue is often consent rather than identity. The analysis weighs the benefits of minimizing invasive exams and protecting victim privacy against the potential loss of probative evidence, ultimately suggesting that the benefits of selective collection outweigh the harms.

We Are Never Ever Getting Back Together: Domestic Violence Victims, Defendants, And Due Process, Jessica Miles

Cardozo Law Review

No abstract provided.

Mock Trials And Real Justices And Judges, Richard A. Posner

Cardozo Law Review

No abstract provided.

"That's The Guy!": Federal Rule Of Evidence 801(D)(1)(C) And Out-Of-Court Statements Of Identification, Gilbert M. Rein

Cardozo Law Review

No abstract provided.

Congressional Policy For Work Product Protection In Congressional Investigations, Jay Brody

Cardozo Public Law, Policy & Ethics Journal

The note examines the conflict between congressional investigative powers and the work product doctrine, advocating for a balanced approach that considers the nature of the investigation. It argues that the type of congressional investigation—legislative, oversight, or investigative—should determine the level of work product protection applied, ensuring both effective governance and legal fairness.

Predictive Coding: Emerging Questions And Concerns, Charles M. Yablon, Nick Landsman-Roos

Articles

Technology-assisted review-also referred to as "predictive coding," "computer-aided review," and "content-based advanced analytics"-is the most important development in e-discovery to have occurred in some time. While technical characterizations of the process vary largely because of differences across software platforms, basically predictive coding is a process whereby computers are programmed to search large quantities of documents using complex algorithms to mimic the document selection process of a knowledgeable, human document review. It is said to do such a review faster and without many of the dangers of human error. Because of its speed and accuracy, it has been described as a …

Doe Co., Ltd V. Doe, Uzi Vogelman, Isaac Amit, Esther Hayut

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.]

The Supreme Court (Justice Vogelman, Justices Hayut and Amit, concurring) granted leave to appeal, upheld the appeal and ruled as follows.

The Court considered the proceedings on the premise that the provisions of section 70(e1) of the Courts Act [Consolidated Version], 5744-1984 (hereinafter – the “Act”), which refers to a “suspect” as defined in section 70(e2) of the Act “as someone against whom a …

Exchanging Shares To Settle A Lawsuit: Should A Confidentiality Agreement Bar Evidence Of Securities Fraud?, Christopher Tao

Cardozo Journal of Conflict Resolution

Suppose that two parties enter into a mediated written settlement, but in a subsequent court proceeding, one party claims to have discovered evidence clearly establishing fraud by the opposing party during the mediation process. When a court has to determine whether or not to enforce a negotiated settlement, do mediation confidentiality rules permit the court to admit one party's evidence of the other party's fraud or misrepresentations during the mediation?

Protecting The Innocent - The Need To Adapt Federal Asset Forfeiture Laws To Protect The Interests Of Third Parties In Digital Asset Seizures, Elizabeth Friedler

Cardozo Arts & Entertainment Law Journal

No abstract provided.

The Extension Of The Presumption Of Legitimacy To Same-Sex Couples In New York, Alexandra Eisman

Cardozo Journal of Equal Rights & Social Justice

The note argues that the presumption of legitimacy, a cornerstone of family law, should be extended to same-sex couples to ensure legal equality and protect the rights of their children. It critiques the traditional application of the presumption, which excludes same-sex couples, and advocates for its evolution to align with modern legal trends and the best interests of children. The analysis emphasizes the importance of legislative and judicial action to address the disparities faced by same-sex families under current laws.

State V. Makor Rishon Hameuhad (Hatzofe) Ltd., Elyakim Rubinstein, Isaac Amit, Uzi Vogelman

Translated Opinions

Facts:  A violent demonstration took place at the Ephraim District Brigade Headquarters on the night of 12/13 December 2011. A photographer, who had been invited by one of the participants, was present taking photographs. The police sought an order, pursuant to section 43 of the Criminal Procedure Ordinance, requiring the photographer and her newspaper to produce the photographs. The photographer and newspaper refused, arguing that the photographs would provide information that could identify the photographer’s source, and were thus protected by the journalist’s privilege. The magistrate court applied the Citrin test and rejected the privilege claim. The district court distinguished …

Reevaluating Administrative Evidence Policy: The Case For Two Exclusionary Rules At Social Security Administrative Hearings, Max Bookman

Cardozo Public Law, Policy & Ethics Journal

The note advocates for the adoption of two specific exclusionary rules in Social Security Administration (SSA) disability hearings to address fairness concerns while maintaining efficiency. It argues that the current process, which prioritizes efficiency over the ability to cross-examine evidence, can lead to unfair outcomes for claimants. The proposed rules aim to ensure claimants can challenge evidence, promoting a fairer process without overly burdening the system. The note challenges the traditional view that exclusionary rules are unnecessary in administrative hearings, emphasizing the need for a balance between efficiency and fairness.

Neuroscience, Ptsd, And Sentencing Mitigation, Betsy J. Grey

Cardozo Law Review

No abstract provided.

Expertise, Lab Lit, And The Fantasy Of Science Free From Economics, David S. Caudill

Cardozo Law Review

No abstract provided.

Guilty Until Proven Innocent: Providing Effective Relief To The Actually Innocent In New York, Steven M. Cytryn

Cardozo Public Law, Policy & Ethics Journal

No abstract provided.

Client Confidentiality And The External Regulation Of The Legal Profession: Reporting Requirements In The United States And United Kingdom, Maria Castilla

Cardozo Public Law, Policy & Ethics Journal

The note examines the dual role of lawyers as both zealous advocates for their clients and guardians of justice, highlighting the tension this creates, particularly in the context of corporate scandals. It critiques the notion that lawyers should solely serve their clients and suggests a more active role in preventing misconduct. The analysis compares regulatory approaches in the U.S. and the U.K., noting that the U.S. relies more on self-regulation while the U.K. emphasizes external oversight, reflecting differing societal perceptions of lawyers' roles.

Exile Without Process: The New York City Housing Authority's Unconstitutional Trespass Notice Program, Lauren J. Zimmerman

Cardozo Law Review

No abstract provided.

The Demise Of The Federal Shield Law, William E. Lee

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Convenient Scapegoats: Juvenile Confessions And Exculpatory Dna In Cook County, Illinois, Joshua A. Tepfer, Craig M. Cooley, Tara Thompson

Cardozo Journal of Equal Rights & Social Justice

The article examines the pervasive issue of false confessions, particularly among juveniles and mentally challenged individuals, which often lead to wrongful convictions. It underscores the critical role of DNA evidence in exonerating the innocent and highlights the need for systemic reforms in police interrogation practices and prosecutorial oversight. The analysis emphasizes the importance of transparency in evidence handling and the implementation of policies to prevent future injustices.

The Judiciary In Political Transitions: The Critical Role Of U.S. Constitutionalism In Latin America, Nuno Garoupa, Maria A. Maldonado

Cardozo Journal of International and Comparative Law

This paper proposes a theory that explains how political transitions deal with incumbent judiciaries. We argue that a new political regime compares the benefit of reshaping the judiciary with loyal appointees against the political and economic costs of directly interfering, including the cost of international reputation. There are several forms of interventionism including court packing, court purging, and violence against the judiciary. We discuss political transitions in Europe and Latin American civil law jurisdictions through the lens of our theory. We argue that American constitutional influence plays a critical role. In addition, we provide a detailed analysis of the recent …