Judges Commons^™

Should Federal Evidence Rules Trump State Tort Policy? The Federalism Values Daubert Ignored, Michael H. Gottesman

Cardozo Law Review

I want to explore issues that the Supreme Court should have addressed in Daubert but did not. The Court decided that Rule 702 of the Federal Rules of Evidence ("FRE") assigns a "gatekeeping" function to federal trial judges, who are to exclude expert scientific opinions that do not meet a standard of "reliability" vaguely sketched out in the Court's opinion.

The Daubert case involved exclusively state substantive law issues and was in federal court only because the defendant removed it from state court on the basis of diversity of citizenship. The Court held the gatekeeping function applicable in diversity actions, …

The Supreme Court’S View Of Science: Has Daubert Exorcised The Certainty Demon?, Bert Black

Cardozo Law Review

The Supreme Court's mandate in Daubert that experts who give testimony based on science must confine themselves to valid scientific knowledge seems tautologically obvious, and hardly an issue requiring the attention of the nation's nine highest judges. The debate that led to Daubert was generated, however, by opponents of judicial screening who argued that holding experts to scientific standards somehow imposes an undue burden of proof on plaintiffs, especially in toxic tort cases - and the Supreme Court's decision has not put the issue completely to rest. Science, according to this "relaxed standards" argument, demands certainty far beyond the law's …

Impeachment By Conviction Evidence: Judicial Discretion And The Politics Of Rule 609, Victor Gold

Cardozo Law Review

No provision of the Federal Rules of Evidence has sparked more controversy than Rule 609, which deals with the admissibility of convictions to impeach a witness. When first proposed, the provision was the subject of fierce debate, sparking repeated revision during its drafting and while it was under consideration by Congress. Ultimately, no one side in this legislative battle prevailed entirely; the Rule strikes a compromise between sharply conflicting policies. The text of Rule 609, incorporating no less than three balancing tests, two references to fairness, one to justice, and several other undefined terms, leaves the task of resolving the …

After Daubert: Going Forward With Lessons From The Past, Marc S. Klein

Cardozo Law Review

Ground zero in the ongoing battle over scientific evidence in toxic tort cases has clearly shifted in light of Daubert v. Merrell Dow Pharmaceuticals, Inc. In that case, the Supreme Court settled at least two profound issues. One has immediate practical consequences, the other has important philosophical implications.

Writing Supreme Court Biography: A Single Lens View Of A Nine-Sided Image, Stephen Wermiel

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Coconspirator Statements And Former Testimony In New York And Federal Courts With Some Comments On Codification, Randolph N. Jonakait

Touro Law Review

No abstract provided.

Judge-Jury Communications: Improving Communications And Understanding Bias, Ladoris Hazzard Cordell, Robert Rosenthal, Charles F.C. Ruff, Steven J. Adler

Indiana Law Journal

Symposium: Improving Communications in the Courtroom

A Stalwart At The Bar, Arthur Norman Field

Cardozo Law Review

The New York legal community that Jack Bums found upon his admission to the Bar in 1932 was not given to welcoming all comers. It was changing rapidly. To many leaders of the Bar the change was not a positive one.

Judicial Opinions As Binding Law And As Explanations For Judgments, Thomas W. Merrill

Cardozo Law Review

To what extent does the executive branch have autonomous powers of legal interpretation? The issue is often broadly framed in terms of two disparate understandings of the allocation of interpretative power: "judicial supremacy" and "departmentalism." In this paper, I shall speak of two different understandings of judicial opinions: the idea that judicial opinions (or at least the "holdings" of opinions) are legally binding on actors in the executive branch, and the idea that opinions are, from the perspective of executive actors, merely explanations for judicial judgments. I adopt this locution because it focuses more precisely on the core of the …

Did She Mention My Name?: Citation Of Academic Authority By The Supreme Court Of Canada, 1985-1990, Vaughan Black, Nicholas Richter

Dalhousie Law Journal

Readers of court judgments will have observed that in the course of expressing reasons for the decisions they reach, judges commonly refer to books and articles written by academics. This is not surprising. Many scholarly publications contain information, arguments and opinions pertinent to the choices that judges must make, and lawyers commonly refer to such works in the written and oral arguments they present to courts. We would therefore expect the judges who must assess and respond to such arguments to make mention of that scholarly material. Moreover a certain portion of academic writing-in particular, a preponderance of law review …

A Further Word Against Consensus, John O. Mcginnis

Articles

In their Response to my Essay, Professors Strauss and Sunstein not only take issue with a few of my arguments but also suggest a measure of consensus between their views and mine on the confirmation process.1 While I very much appreciate their proffer of half an olive branch, upon reflection I believe that the differences between us concerning the confirmation process remain very great and illustrate even more profound differences concerning the premises and structure of our republican Constitution.

The President, The Senate, The Constitution, And The Confirmation Process: A Reply To Professors Strauss And Sunstein, John O. Mcginnis

Articles

No abstract provided.

Thurgood Marshall: The Lawyer As Judge, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

When Thurgood Marshall took the Oath in 1967, it was the twilight of one of the Court's most brilliant periods: the Warren Court's revolution of criminal and racial justice. He was a part of that alliance for two Terms. When a new Court, and new alliances, moved the Court into the dark shadows, he and his closest colleague, William Brennan, Jr., held staunchly to their vision of the Court's historic function “to be watchful for the constitutional rights of the citizen, and against any stealthy encroachment thereon.” He remained faithful to that vision to the end when, as a lone …

Mr. Justice Frankfurter's Iconography Of Judging, Alfred S. Neely

Kentucky Law Journal

No abstract provided.

Name-Calling And The Clear Error Rule, Robert F. Nagel

Publications

No abstract provided.

Advocacy And Scholarship, Paul F. Campos

Publications

The apex of American legal thought is embodied in two types of writings: the federal appellate opinion and the law review article. In this Article, the author criticizes the whole enterprise of doctrinal constitutional law scholarship, using a recent U.S. Supreme Court case and a Harvard Law Review article as quintessential examples of the dominant genre. In a rhetorical tour de force, the author argues that most of modern constitutional scholarship is really advocacy in the guise of scholarship. Such an approach to legal scholarship may have some merit as a strategic move towards a political end; however, it has …

Three Mistakes About Interpretation, Paul Campos

Publications

No abstract provided.

Some Worries About Sentencing Guidelines, William T. Pizzi

Publications

No abstract provided.

Specifying Grounds For Judicial Disqualification In Federal Courts., Leslie W. Abramson

Faculty and Staff Scholarship

One essential component of equal justice under the law is a neutral and detached judge to preside over the court proceedings. Public confidence in the legal system is maintained when a judge has no interest in the parties, attorneys or subject matter of the litigation. Sua sponte or by motion of a party, a federal judge is subject to disqualification for conflicts of interest on both constitutional and statutory grounds

In Re Holtzman: Free Speech Or Professional Misconduct?, David W. Wright

Touro Law Review

No abstract provided.

Confirming The Constitution: The Role Of The Senate Judiciary Committee, Stephen Wermiel

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Grammarians At The Gate: The Rehnquist Court's Evolving Plain Meaning Approach To Bankruptcy Jurisprudence, Walter Effross

Scholarly Articles in Law Reviews & Journals

No abstract provided.

The Federal Administrative Judiciary: Establishing An Appropriate System Of Performance Evaluation For Alj's, Jeffrey Lubbers

Scholarly Articles in Law Reviews & Journals

No abstract provided.

John D. Appel, Leslie Berman

Cardozo Law Review

No abstract provided.

Section 1: Moot Court: Nixon V. United States, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Forensic Expertise In Dutch Criminal Procedure, Johannes F. Nijboer

Cardozo Law Review

No abstract provided.

Choosing Between Normative And Descriptive Versions Of The Judicial Role, Michael E. Herz

Articles

No abstract provided.

Deference Running Riot: Separating Interpretation And Lawmaking Under Chevron, Michael E. Herz

Articles

No abstract provided.

Dworkin And The Doctrine Of Judicial Discretion, David Jennex

Dalhousie Law Journal

In a series of books and articles published over the last thirty years, Ronald Dworkin has relentlessly attacked the positivist view according to which law is a species of empirically verifiable fact. A position closely associated with this view, and with which Dworkin also takes issue, is the doctrine of judicial discretion. This doctrine asserts that in hard cases - cases in which it is unclear what the law requires - there is no legally required dispensation, so that judges are entitled to use discretion in making their decision. Dworkin disagrees, maintaining that in many such cases a thorough investigation …

Reasoning With The Charter, Gerald Tg Seniuk

Dalhousie Law Journal

Reasoning with the Charter by Leon Trakman is a timely and useful book. It is "timely" because in this the tenth anniversary of the Charter it is appropriate to review its impact, which Prof. Trakman finds wanting and unduly circumscribing. It is also useful, although "useful" is not a term usually associated with a theoreticalbook such as this. Certainly this is not a "how-to" book about Charter application. It does, however, outline a different approach to Charter interpretation and it may be that the neglect by our judges of this approach is a mistake. Perhaps not; but there are at …