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Questioning Hearsay\u27s Formalism
No full textThe rule against hearsay has a simple premise: a speaker\u27s out-of-court statement can be inaccurate, misleading, or downright false. This premise is being eroded by a judicial formalism under which second-hand statements now reach the jury unless the statements make assertions in declarative sentences, such as “Sam, I know you sell drugs.” The same belief conveyed by “Sam, do you still have any of those drugs for sale?” is deemed nonhearsay because it is housed in a question. The problem is that this question presents an incriminating presupposition--the speaker\u27s expressed assumption that Sam is a drug dealer. This belief becomes a “fact” that may be used to convict Sam without assessing the absent speaker\u27s reliability. This formalistic turn in hearsay interpretation is both wrong and harmful. It is wrong because it disregards the reliability-centered definition of hearsay held over from the common law. And it ignores the mounting linguistics, philosophy, and psychology research that shows people perpetuate lies with presuppositions just as effectively as they do with declarative assertions. The turn is harmful because when these incriminating and potentially false presuppositions evade the hearsay rule, the result is a double standard based on sentence form that is unrelated to hearsay concerns and that undercuts procedural justice. This Article is the only scholarship to address the evidentiary power of presuppositions and the first to confront formalism\u27s capture of the hearsay definition. There is nothing special about assertions in declarative sentences; formal sentence features should cease to rule the hearsay analysis. Instead, that analysis should turn on a statement\u27s belief-inducing function, tested by deniability: whether the absent speaker can plausibly deny the beliefs conveyed in her communication. In the absence of deniability, the speaker has *914 communicated a belief that could be inaccurate, misleading, or false. The deniability approach eliminates the sentence-form double standard and resolves a decades-long debate over how to spot hearsay in hard cases where a speaker conveys more than what she explicitly says
The Rule of Law, The Lawyer\u27s Role as a Public Citizen, and Professional Identity: How Fostering the Development of Professional Identity Can Help Law Schools Address the Crisis Facing American Democracy
No full textAmerican democracy is in crisis. The January 6, 2021, attack on the U.S. Capitol must serve as a renewed wake-up call for the legal profession. We can no longer keep our heads down, focused solely or even primarily on serving our clients, without being mindful that what we do every day as lawyers starts and ends with our duty to uphold the rule of law and our system of justice. By training the lawyers of tomorrow, American law schools are uniquely positioned to elevate the role of the lawyer as a public citizen charged with upholding the rule of law and remedying injustice. Accordingly, this article will explore the intersection of the Preamble’s definition of lawyer “as public citizen” with law student professional identity formation and training on cross-cultural competence, racism, and bias required by ABA Standards 303(b)(3) and 303(c). This intersection provides a crucial means to help students discern their role as future lawyers and empower students in their duties to protect the rule of law as the foundation of democracy, provide access to justice, and make change where the law has created injustice
Earning Trade Secrets
No full textEvery intellectual property right, like every property right generally, has a moment of birth. Whether and when that moment occurs depend on doctrines of original acquisition. In most IP regimes, these doctrines are so fundamental that they’ve been reduced to a single verb. One can get a pa-tent only by inventing, or a copyright only by authoring. The modern law of trade secrecy, however, remains strangely quiet on its own rules of original acquisition. While it asks whether the claimed information is secret enough and whether the owner is guarding that secret, it sidesteps the basic question of what that would be owner must do in order to earn legal protection in the first place.
That inattention is becoming more troubling. Firms are increasingly weaponizing the broad definition of trade secrets to assert rights over any information that they want to shield from public scrutiny, from workplace injury statistics to employee diversity data to consumer complaints. In many cases, the firm made no real effort to develop the information, and in the most egregious ones the firm would rather the in-formation not exist at all. Still, under the black letter eligibility test, it’s not clear that those facts would bar a claim.
In this Article, however, we argue that trade secrecy does indeed possess a neglected doctrine of original acquisition—and its proper application could dispose of some of these per-verse claims. In order to receive the legal entitlement, we contend, a claimant must have made some meaningful economic investment in causing the information to exist. While tying trade secret protection to development cost has a long pedigree at common law, it doesn’t get the attention it de-serves today because it’s not mentioned in any governing statute. Yet as we show, many cases nevertheless continue to treat development cost as a freestanding eligibility consideration anyway. Emphasizing investment within trade secrecy’s law of original acquisition is a policy lever hiding in plain sight within classical doctrine. While conditioning eligibility on this sort of sweat equity is famously abjured by both copyright and patent law, we explain why it makes far more sense for trade secrets
The Supreme Court and the Emergency Medical Treatment and Labor Act--A Dangerous Time for Us All
No full textCharity Scott, Bioethics, and Health Law
No full textAs Steve Kaminshine said in his comments at the symposium honoring Charity Scott, I was recruited to come to Georgia State University as a Law and Bioethics scholar who had spent more than sixteen years shuttling between an office in a hospital and another in a law school. But when I first visited Georgia State Law, I did not know that more than ten years earlier Charity Scott had spent the better part of an academic year living and breathing clinical ethics at Grady Memorial Hospital. Because of her usual habit of immersion in all learning experiences, in that year Charity gained more insight into how hospitals work and how physicians behave when they are knee deep in their professional milieu of life and death decision-making than many full-time bioethics academics do in a career. For the rest of her career Charity kept one foot well planted in the medical context, as an advisor in problems of research ethics, as a teacher in her own medical-legal partnership structured around real-life clinical problems, and as an ethical analyst who could never be accused of mouthing a mantra of phrases, the vacuous incantation of abstract principles that might pass for bioethics discourse in some circles
