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Articles 31 - 60 of 71
Full-Text Articles in Evidence
Trust Your Broker: Suitability, Modern Portfolio Theory, And Expert Witnesses, Roger Reinsch, J B. Reich, Nauzer Balsara
Trust Your Broker: Suitability, Modern Portfolio Theory, And Expert Witnesses, Roger Reinsch, J B. Reich, Nauzer Balsara
St. Thomas Law Review
The death of the "dot coms" in the late 1990's left many investors questioning investment advice. Specifically, they began to question the direction, interests, and professional competence of their stockbrokers. Investors who felt their stockbrokers failed them are increasingly resorting to litigation, pursuing what has become known as "suitability" claims, claims based on the argument that brokers recommended or purchased securities that were not suitable for an investor's profile. The issues in and surrounding suitability claims are complex, yet surprisingly little has been written on this topic. This article seeks to foster a much needed discussion and will examine the …
Global Antitrust Enforcement: The Sherman Act Does Not Apply Without Any Direct Domestic Effect, But Discovery Assistance May Be Available To Aid A Foreign Tribunal, According To The U.S. Supreme Court, 38 J. Marshall L. Rev. 495 (2004), Sue Ann Mota
UIC Law Review
No abstract provided.
Remaining Silent: A Right With Consequences, 38 J. Marshall L. Rev. 649 (2004), Jeffrey D. Waltuck
Remaining Silent: A Right With Consequences, 38 J. Marshall L. Rev. 649 (2004), Jeffrey D. Waltuck
UIC Law Review
No abstract provided.
Back To The Future With Privileges Abandon Codification, Not The Common Law, Paul Rice
Back To The Future With Privileges Abandon Codification, Not The Common Law, Paul Rice
Scholarly Articles in Law Reviews & Journals
No abstract provided.
The Central Park Five, The Scottsboro Boys, And The Myth Of The Bestial Black Man, N. Jeremi Duru
The Central Park Five, The Scottsboro Boys, And The Myth Of The Bestial Black Man, N. Jeremi Duru
Scholarly Articles in Law Reviews & Journals
No abstract provided.
Ake V. Oklahoma: The Right To Expert Assistance In A Post-Daubert, Post-Dna World, Paul C. Giannelli
Ake V. Oklahoma: The Right To Expert Assistance In A Post-Daubert, Post-Dna World, Paul C. Giannelli
Faculty Publications
Although securing the services of defense experts to examine evidence, to advise counsel, and to testify at trial is frequently critical in modern criminal litigation, it was not until 1985 that the United States Supreme Court in Ake v. Oklahoma, 470 U.S. 68 (1985), recognized, for the first time, a constitutional right to expert assistance. In a system in which an overwhelming majority of criminal defendants are indigent, Ake was a landmark case. Nevertheless, the Ake Court could not have anticipated how the advent of DNA evidence would revolutionize forensic science or how the Daubert trilogy would alter the judicial …
Judges As Film Critics: New Approaches To Filmic Evidence, Jessica M. Silbey
Judges As Film Critics: New Approaches To Filmic Evidence, Jessica M. Silbey
University of Michigan Journal of Law Reform
This Article exposes internal contradictions in case law concerning the use and admissibility of film as evidence. Based on a review of more than ninety state and federal cases dating from 1923 to the present, the Article explains how the source of these contradictions is the frequent miscategorization of film as "demonstrative evidence, "evidence that purports to illustrate other evidence, rather than to be directly probative of some fact at issue. The Article further demonstrates how these contradictions are based on two venerable jurisprudential anxieties. One is the concern about the growing trend toward replacing the traditional testimony of live …
New Technology, Old Defenses: Internet Sting Operations And Attempt Liability, Audrey Rogers
New Technology, Old Defenses: Internet Sting Operations And Attempt Liability, Audrey Rogers
University of Richmond Law Review
No abstract provided.
Crying Wolf Or An Excited Utterance - Allowing Reexcited Statements To Qualify Under The Excited Utterance Exception, Jone Tran
Cleveland State Law Review
It is clear that the reexcitement analysis has both benefits and detriments. Reexcitement may be a basis for admission of evidence in cases where the danger of influencing during the calm period is somehow obviated-as in the recent Crawford opinion. Because of the heightened danger of undue influence in reexcitement cases, the courts should require corroborating evidence that the declarant did not confide in anyone during the intervening period of calm, to reduce the chance of outside pressures and influences. Congress should provide an amendment to the Federal Rules of Evidence expressly allowing for reexcitement, but also requiring either physical …
Epistemology Legalized: Or, Truth, Justice, And The American Way, Susan Haack
Epistemology Legalized: Or, Truth, Justice, And The American Way, Susan Haack
Articles
No abstract provided.
Lingering Questions Of A Supreme Court Decision: The Confines Of The Psychotherapist-Patient Privilege, Jennifer L. Odrobina
Lingering Questions Of A Supreme Court Decision: The Confines Of The Psychotherapist-Patient Privilege, Jennifer L. Odrobina
Cleveland State Law Review
The United States Supreme Court "in light of [its] reason and experience"' has recognized a psychotherapist-patient privilege. The Court has, however, left lingering questions for the lower courts to determine regarding possible exceptions to the privilege. The lower courts have used their own reason and experience to develop exceptions to the privilege. Such exceptions include the crime-fraud exception, waiver exception, and the dangerous-patient exception. Inevitably other exceptions will follow. The Supreme Court should recognize a dangerous patient exception to the psychotherapist-patient privilege to allow a psychotherapist to testify in court when there is "a serious threat of harm to the …
Comments: Because Sex Crimes Are Different: Why Maryland Should (Carefully) Adopt The Contested Federal Rules Of Evidence 413 And 414 That Permit Propensity Evidence Of A Criminal Defendant's Other Sex Offenses, Joyce R. Lombardi
University of Baltimore Law Review
No abstract provided.
On The Theory Class's Theories Of Asbestos Litigation: The Disconnect Between Scholarship And Reality, Lester Brickman
On The Theory Class's Theories Of Asbestos Litigation: The Disconnect Between Scholarship And Reality, Lester Brickman
Articles
No abstract provided.
Electronic Discovery Best Practices, Virginia Llewellyn
Electronic Discovery Best Practices, Virginia Llewellyn
Richmond Journal of Law & Technology
The concept of electronic discovery is still somewhat intimidating to many attorneys, but those who have learned to implement electronic discovery best practices are enjoying the advantages it offers, which include greater control over document review and production processes as well as significant cost reductions. Whether you come to the discovery process as in-house or outside counsel, you can anticipate some of the issues involved in responding to electronic data requests. Pre-review cooperation among in-house counsel, their litigators, and Information Technology (IT) personnel is ideal for planning a successful electronic discovery response.
“Do I Really Have To Do That?” Rule 26(A)(1) Disclosures And Electronic Information, David J. Waxse
“Do I Really Have To Do That?” Rule 26(A)(1) Disclosures And Electronic Information, David J. Waxse
Richmond Journal of Law & Technology
When the Federal Rules of Civil Procedure (FRCP) were formally adopted by United States Supreme Court Order on December 20, 1937, the emergence of computers and electronic information and their widespreadusewerehardlycontemplated. AlthoughtheFederalRulesof Civil Procedure have been amended on occasion to accommodate changing technology, the advent of the computer age creates new challenges for litigants, their attorneys, and the courts as they strive to apply traditional rules in an innovative technological environment. This article discusses just one aspect of that challenge: the fact that the vast majority of information now exists in electronic format and the impact of this reality on …
Negotiating The Minefields Of Electronic Discovery, Stephen D. Williger, Robin M. Wilson
Negotiating The Minefields Of Electronic Discovery, Stephen D. Williger, Robin M. Wilson
Richmond Journal of Law & Technology
A company’s employee has sued for sexual harassment, age discrimination, or wrongful termination. Or, as another example, the company has been sued for infringement of intellectual property, breach of contract, fraud, or any number of other business reasons. During the course of discovery, the plaintiff serves discovery requests, including a request for data that has been deleted from the company’s electronic records but may still be contained within the company’s backup systems. The search for this data is time consuming and expensive. Discoverable materials may be found in the company’s backup system, but does that possibility justify the lost productivity …
True To Character: Honoring The Intellectual Foundations Of The Character Evidence Rule In Domestic Violence Prosecutions, Andrew King-Ries
True To Character: Honoring The Intellectual Foundations Of The Character Evidence Rule In Domestic Violence Prosecutions, Andrew King-Ries
Faculty Law Review Articles
This article calls for a new character evidence rule allowing the admission of prior acts of abuse within the context of a current domestic violence prosecution. Section II discusses the history of domestic violence in America and explores the three ways that the law has condoned domestic violence, including implicit sanction through the effect of the character evidence rule. Section III examines the intellectual background of the character evidence ban. This section also explores the conflict between the character evidence rule and the law's recognition of domestic violence. Further, Section III demonstrates how the character evidence ban violates its underlying …
A Legisprudential Analysis Of Evidence Codification: Why Most Evidence Rules Should Not Be Codified—But Privilege Law Should Be, Paul F. Kirgis
A Legisprudential Analysis Of Evidence Codification: Why Most Evidence Rules Should Not Be Codified—But Privilege Law Should Be, Paul F. Kirgis
Faculty Law Review Articles
In this article, I will suggest standards for use in assessing a proposed codification. Although the standards I will identify are useful for evaluating a proposed codification of privilege law, they are also more generally applicable. Indeed, I will use them to examine the codification of evidence law in general. First, I will ask whether, as a normative matter, the law of evidence should be codified. I will then focus on the individual rules of evidence, most notably the privilege rules, to draw conclusions about whether those standards are met.
Questions Of Fact In The Practice Of Law: A Response To Allen & Pardo's Facts In Law, Facts Of Law, Paul F. Kirgis
Questions Of Fact In The Practice Of Law: A Response To Allen & Pardo's Facts In Law, Facts Of Law, Paul F. Kirgis
Faculty Journal Articles & Other Writings
In an article in this journal, Professor Ronald Allen and Michael Pardo critiqued efforts to explain the fact-law distinction on ontological, epistemological or analytical grounds. Finding those efforts unavailing, the authors concluded that decisions to label an issue 'legal' or 'factual' rest on purely functional considerations turning on a complex set of variables including the conventional meanings of the terms, structural relationships among potential decision-makers, and a distinction between matters of general and specific import. In this response, it is argued that Allen and Pardo's critique is accurate to the extent it addresses the fact-law distinction from a general jurisprudential …
Standards Of Evidence In Administrative Proceedings, William H. Kuenhle
Standards Of Evidence In Administrative Proceedings, William H. Kuenhle
NYLS Law Review
No abstract provided.
Christian V. Gray: The Oklahoma Supreme Court Accepts The Daubert Standard, Debra W. Mccormick, Randon J. Grau
Christian V. Gray: The Oklahoma Supreme Court Accepts The Daubert Standard, Debra W. Mccormick, Randon J. Grau
Oklahoma Law Review
No abstract provided.
Expert Witness Fees As A Recoverable Item Of Costs: Recent Litigation Trends, Paul M. Kolker
Expert Witness Fees As A Recoverable Item Of Costs: Recent Litigation Trends, Paul M. Kolker
Oklahoma Law Review
No abstract provided.
The Proportionate Trading Model: Real Science Or Junk Science, Brian P. Murray
The Proportionate Trading Model: Real Science Or Junk Science, Brian P. Murray
Cleveland State Law Review
The PTM has all the hallmarks of "real" science, using either a scientists' definition or that of the Daubert Court. From a scientist's perspective, it is a functional paradigm, serving as a working model. The practitioners in the field are engaged in "clean-up," for example, deciding which acceleration factor best fits observed data. Under the Daubert test, the PTM will assist the trier of fact, has been subjected to peer review (unlike the major critique), and has acceptable rates of error and general acceptance. Testifying experts may disagree as to which acceleration factor to use, but that is merely fair …
Use Of Secret Evidence By Government Lawyers: Balancing Defendants' Rights With National Security Concerns, Tracy L. Conn
Use Of Secret Evidence By Government Lawyers: Balancing Defendants' Rights With National Security Concerns, Tracy L. Conn
Cleveland State Law Review
The ability to use secret evidence in trials involving national security matters is an extremely controversial power of the government lawyer. Although the use of secret evidence was a divisive issue before September 11, 2001, the terrorist attacks that day sparked the passage of new legislation that increased the power of the government lawyer to use classified evidence. By examining the cases involving secret evidence both before and after September 11, in particular the case of Zacarias Moussaoui, it becomes apparent that what is at stake is the appropriate balance between national security concerns and the constitutional rights of defendants. …
Are Your Eyes Deceiving You?: The Evidentiary Crisis Regarding The Admissibility Of Computer Generated Evidence, Betsy S. Fiedler
Are Your Eyes Deceiving You?: The Evidentiary Crisis Regarding The Admissibility Of Computer Generated Evidence, Betsy S. Fiedler
NYLS Law Review
No abstract provided.
Rethinking The Role Of Expert Testimony Regarding The Reliability Of Eyewitness Identifications In New York, Scott Woller
Rethinking The Role Of Expert Testimony Regarding The Reliability Of Eyewitness Identifications In New York, Scott Woller
NYLS Law Review
No abstract provided.
Protecting The Citizen Whilst He Is Quiet: Suspicionless Searches, Special Needs And General Warrants, Scott E. Sundby
Protecting The Citizen Whilst He Is Quiet: Suspicionless Searches, Special Needs And General Warrants, Scott E. Sundby
Articles
No abstract provided.
Out With The Old And In With The New: The Second Circuit Shows It's Time For The Supreme Court To Finally Overrule Mcdonnell Douglas, Kerry S. Acocella
Out With The Old And In With The New: The Second Circuit Shows It's Time For The Supreme Court To Finally Overrule Mcdonnell Douglas, Kerry S. Acocella
Cardozo Journal of Equal Rights & Social Justice
The note argues that the Desert Palace, Inc. v. Costa case represents a significant shift in employment discrimination law under Title VII, as it simplifies the process for plaintiffs to prove discrimination by allowing the use of circumstantial evidence in mixed-motive claims. The decision aligns with the 1991 Civil Rights Act and highlights the need to reassess the stricter standards of the McDonnell Douglas framework, which the author critiques as overly burdensome. The analysis also examines the implications of this shift through the lens of the Sanders v. NYC HRA case, advocating for the explicit overruling of McDonnell Douglas in …
Face To Face': Rediscovering The Right To Confront Prosecution Witnesses, Richard D. Friedman
Face To Face': Rediscovering The Right To Confront Prosecution Witnesses, Richard D. Friedman
Articles
The Sixth Amendment to the United States Constitution protects the right of an accused 'to confront the witnesses against him'. The United States Supreme Court has treated this Confrontation Clause as a broad but rather easily rebuttable rule against using hearsay on behalf of a criminal prosecution; with respect to most hearsay, the exclusionary rule is overcome if the court is persuaded that the statement is sufficiently reliable, and the court can reach that conclusion if the statement fits within a 'firmly rooted' hearsay exception. This article argues that this framework should be abandoned. The clause should not be regarded …
Adjusting To Crawford: High Court Decision Restores Confrontation Clause Protection, Richard D. Friedman
Adjusting To Crawford: High Court Decision Restores Confrontation Clause Protection, Richard D. Friedman
Articles
In Crawford v. Washington, 124 S. Ct. 1354 (2004), the U.S. Supreme Court radically transformed its doctrine governing the Confrontation Clause of the Sixth Amendment to the U.S. Constitution. Craitiord is a very positive development, restoring to its central position one of the basic protections of the common law system of criminal justice. But the decision leaves many open questions, and all lawyers involved in the criminal justice process will have to adjust to the new regime that it creates. This article outlines and summarizes the problems with the law as it stood before Crait/brd. It then explains the theoretical …