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Evidence of the Law: Proving Legal Claims
No full textHow does one prove the law? If your neighbor breaks your window, the law regulates how you can show your claim to be true or false; but how do you prove that in breaking your window your neighbor has broken the law? American jurisprudence devotes an elaborate body of doctrine—and an equally elaborate body of accompanying scholarly commentary—to worrying about how to prove facts. It establishes rules for the admissibility of evidence, creates varying standards of proof, and assigns burdens of proof that determine who wins or loses when the facts are unclear. But the law is shockingly inexplicit when addressing these issues with respect to the proof of legal claims. Indeed, the entire language of evidentiary proof, so sophisticated when it comes to questions of fact, is largely absent from the American legal system with respect to questions of law.As Gary Lawson shows, legal claims are inherently objects of proof, and whether or not the law acknowledges the point openly, proof of legal claims is just a special case of the more general norms governing proof of any claim. As a result, similar principles of evidentiary admissibility, standards of proof, and burdens of proof operate, and must operate, in the background of claims about the law. This book brings these evidentiary principles for proving law out of the shadows so that they can be analyzed, clarified, and discussed. Viewing legal problems through this lens of proof illuminates debates about everything from constitutional interpretation to the role of stipulations in litigation. Rather than prescribe resolutions to any of those debates, Evidence of the Law instead provides a set of tools that can be used to make those debates more fruitful, whatever one’s substantive views may be. As lawyers, judges, and legal subjects confront uncertainty about what the law is, they can, should, and must, Lawson argues, be guided by the same kinds of abstract considerations, structures, and doctrines long used to make determinations about questions of fact.https://scholarship.law.bu.edu/books/1027/thumbnail.jp
Resurrecting Miranda\u27s Right to Counsel
Get PDFThe regime created by Miranda v. Arizona is at this point in its history bankrupt both intellectually and in terms of practical effect. Justices who have joined the Court after Miranda have cut back its scope by stingy interpretations of the doctrine’s reach and effect. In practice, few suspects actually benefit from the way Miranda is now implemented in police stations and courtrooms. Given the failure of Miranda’s promise, can we envision an alternative? Here is one that may be politically palatable and doctrinally feasible, largely adopted from English practice:1. Police would give the same Miranda warnings that they have always provided.2. The police would still operate under the same rules governing the legitimacy of a suspect’s decision to talk in the absence of an attorney. The waiver rules for Miranda rights won’t change, in other words. 3. If the police go ahead and obtain a statement from a suspect without the presence of an attorney, the jury would be instructed that there is a policy in the jurisdiction that the police should not interrogate suspects in the absence of a defense attorney and that the jury may take into account in evaluating the credibility of the statement the fact that the police did not follow this policy. 4. If the police do provide an attorney for the suspect during interrogation, the suspect would be permitted to consult with the attorney and the attorney would be given a reasonable opportunity to advise the suspect during the interrogation. 5. If the suspect does not answer questions that are reasonable for someone in the suspect’s position at the time to respond to, that information would be admissible as substantive evidence of the suspect’s guilt, subject to a ruling on the probative value of the suspect’s silence at the time of trial. 6. If the suspect at trial maintains that his or her silence during the interrogation was based on the advice of the attorney, that claim shall constitute a waiver of the attorney client privilege insofar as it would otherwise protect the contents of the conversation between the suspect and the lawyer. This paper explores the feasibility of the most contestable of these proposals, the one dealing with an adverse inference from silence. It makes the case for viewing the privilege against self incrimination as a doctrine directed at prohibiting compulsion to speak rather than a broad guarantee of a right to silence
Time Is Money: An Empirical Assessment of Non-Economic Damages Arguments
Get PDFNon-economic damages (pain and suffering) are the most significant and variable components of liability. Our survey of 51 U.S. jurisdictions shows wide heterogeneity in whether attorneys may quantify damages as time-units of suffering (“per diem”) or demand a specific amount (“lump sum”). Either sort of large number could exploit an irrational anchoring effect.
We performed a realistic online, video-based experiment with 732 human subjects. We replicate prior work showing that large lump sum demands drive larger jury verdicts, but surprisingly find no effect of similarly-sized per diem anchors. We do find per diem effects on binary liability outcomes, and thus expected case values, however, and we discuss potential causal mechanisms, based in the cognitive science literature.
This empirical work contradicts the speculations by scholars and courts that per diem arguments powerfully impact damage awards. Nonetheless, plaintiffs lawyers have been wise to use per diem arguments when allowed to do so, since our data surprisingly shows them enhancing the expected value of cases by increasing win rates. Past justifications for prohibition are not supported by empirical data
Habermas and Law
No full textHabermas and Law makes accessible the most important essays in English that deal with the application to law of the work of major philosophers for whom law was not a main concern. It encompasses not only what these philosophers had to say about law but also brings together essays which consider those aspects of the work of major philosophers which bear on our interpretation and assessment of current law and legal theory. The essays are based on scholarly study of particular philosophers and deal with both the nature and role of law and the application of philosophy to specific areas of law.https://scholarship.law.bu.edu/books/1001/thumbnail.jp
Free Speech and Hate Speech, from Skokie to Charlottesville
No full textI grew up in Skokie, Illinois. One day in 1975 or 1976, I had just come home from work as a vendor at Wrigley Field when I heard a knock on the door of our apartment. Although I was still soaked with sticky Coca-Cola, I answered the door, and standing there was an older man in short sleeves
Did Justice Scalia Have a Theory of Interpretation?
Get PDFIt seems beyond bizarre to ask whether Justice Scalia had a theory of textual interpretation. If he did not have such a theory, what were he and his critics talking about for the past three decades? The answer is that they were talking about part of a theory of textual interpretation but not an actual, complete theory. A complete theory of textual interpretation must prescribe principles of admissibility (what counts towards meaning), significance (how much does the admissible evidence count), standards of proof (how much evidence do you need for a justified conclusion), burdens of proof (does inertia lie with acceptance or rejection of a proposed meaning), and closure (when is the evidence set adequate to justify a claim). Justice Scalia said a great deal about principles of admissibility and significance, but he said very little about the other essential elements of an interpretative theory. Moreover, much of what Justice Scalia said, and much else that can be inferred from his writings, about statutes and constitutions concerned theories of adjudication rather than theories of interpretation. The relationship between interpretation – the ascertainment of textual meaning – and adjudication – the determination of real-world cases – is actually quite complex, even if one has a normative theory of adjudication that says to decide cases as much as possible in accordance with interpretatively derived textual meaning. In the end, one probably cannot say that Justice Scalia had a theory of textual interpretation. He came close, however, to articulating a complete theory of how to apply statutes and constitutions in adjudication; he was lacking only a clear identification of the appropriate standard of proof for resolving legal claims in adjudication
Teaching the Law of American Health Care
Get PDFIn writing our casebook, The Law of American Health Care, we started from scratch, rethinking the topics to include and themes around which to organize them. Like many health law professors, we were schooled in and continued to propound the traditional themes of cost, quality, access, and choice. While those concerns certainly pervade many areas of health care law, our casebook\u27s overarching themes emphasize different issues, namely: federalism, individual rights, fiduciary relationships, the modem administrative state, and market regulation. These new themes, we believe, better capture the range of issues and topics essential forthe new generation of health lawyers. When we set out to write The Law of American Health Care, our objectives were threefold: (1) simplify; (2) emphasize primary sources; and (3) reorganize the classic state-based law approach to Law and Medicine to reflect the dominance of federal law in the post-Affordable Care Act (ACA) era. In this essay, we will discuss not only how we went about achieving these goals but also how the topical nature of health care law can be addressed through the use of themes, and how themes can facilitate learning on the fly when health care law changes, as it inevitably does
Enhanced Damages for Patent Infringement: A Normative Approach
Get PDFThis paper takes a normative approach to patent infringement damages. Its underlying premise is that the goal of a damages regime should be to maximize society\u27s welfare. Patent damages should therefore balance society\u27s interest in encouraging innovation against the need to regulate infringement incentives. This balancing approach generates an optimal standard for awarding enhanced damages and guidelines for determining the size of the damages multiplier. On the legal standard, the approach developed here illuminates the factors that should be taken into consideration in the enhancement analysis, and, more importantly, the reasons those factors should be considered. On the precise size of the multiplier, this approach suggests principles that both justify and constrain the multiplier: (1) the elimination of gains from willful infringement, (2) the multiplication of damages for covert infringement, and (3) the social interest in enhancing damages where the ratio of the social to the private benefit from the patent is high.
Although the analysis here is mostly normative and draws heavily on the economic theory of penalties, 9 the aim of this paper is to provide a set of practical guidelines courts can follow in explaining, justifying, and developing rules to structure the discretion that Halo has returned to them. Halo provides an opportunity for courts to integrate deterrence policy more closely with the rules governing the enhancement of damages for patent infringement
Wealth Concentration, Racial Subordination, and Political Corruption
No full textJeffrey Winters writes that “Wealth concentration is the single most enduring economic pattern across all polities from Mesopotamia to the present— interrupted only rarely and for brief intervals.” His important chapter centers on “wealth defense,” which refers to measures taken, mainly by or for the most wealthy, to maintain their exceptional wealth. As Winters’ view of American public policy appears sound to me, I propose to abdicate the role of philosophical critic and instead explore further applications of his wealth defense thesis in American history. If my comments seem at any point to disagree with Professor Winters, I think they may be regarded as friendly amendments. I focus on slavery, labor unions, and the corrupting role of wealth in democratic politics
