SelectedWorks @ Chapman University Dale E. Fowler School of Law
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Federal Rule of Evidence 502: Stirring the State Law of Privilege and Professional Responsibility With a Federal Stick
No full textFederal Rule of Evidence 502 was signed into law by President Bush on September 19, 2008. It is the last piece of the puzzle of e-discovery amendments. Rule 502 quietly takes the first steps toward federalization of two areas of law that traditionally have been subject to state regulation: The law governing waiver of the attorney-client privilege and the law governing an attorney\u27s duties of professional conduct. This Article focuses on Rule 502(d) - the heart of this new Federal Rule of Evidence. This subsection permits a federal court to issue an order that protects against waiver of the attorney-client privilege or the work product protection despite a party\u27s voluntary disclosure to an adversary of such protected or privileged information during discovery. The express purpose of Rule 502(d) is to relieve the disclosing party of the burden and cost of paying its attorneys to conduct a document-by-document review for privileged or protected information. This initial foray into the area of state privilege law and state law of professional responsibility has long been resisted because of abiding concern with comity, issues of federalism and respect for the autonomous operation of state courts and state litigation systems. This Article identifies and considers the significant (and unforeseen) practical consequences of breaching the protective zone that has previously existed surrounding the States\u27 operation of their own court systems, state rules of procedure and state rules of professional responsibility. It also addresses serious questions regarding the constitutional authority of Congress to enact such a rule and numerous practical and constitutional problems that will arise when applying the rule
Report on Child Victims of Crime Resolution
No full textResolution and Report passed by the American Bar Association House of Delegates advocating for the appointment of attorneys for child victims and witnesses of crime in criminal and delinquency courts
Contra Private Fairness
No full textThis paper attempts to clarify our understanding of the everyday use of fair as we apply it to economic behavior. I first examine the decomposition of fair into its semantic primitives and discuss implications of recent research which indicates that the word is untranslatable into any other language, i.e., the concept of fair is distinctly Anglo. I also make a Wittgensteinian appeal to context and human sociality as an indispensable tether for what we mean by a fair experience and what we epistemologically know about fairness. The principal implication of this is that rules that guide fair behavior are not located in an individual\u27s private utility function but instead reside in the connections that the individual has to his cultural environs
Pulling the Trigger: Separation Violence as the Basis for Battered Women
No full textMaria Elena fears for her life. For years she has lived under the rule of a despot intent on maintaining absolute control of his realm. As a member of a historically oppressed tribe with few political rights, Maria Elena is a prime target for the dictator’s calculated methods of maintaining control. He has randomly imprisoned, tortured, beaten, and threatened to kill Maria Elena over a period of several years. The torture is worse when Maria Elena takes any action that challenges the despot’s absolute authority.
In this scenario, the classic refugee described above would apply for refugee protection in the form of asylum after reaching safety in the United States. She would claim asylum on the basis that she fears persecution in the form of torture and possible death. There would be little question as to the basis of her claim.
Nevertheless, it is likely that Maria Elena will not be entitled to the same protection as the classic refugee
The Great Collapse: How Securitization Caused the Subprime Meltdown
No full textThis Article builds on existing criticism of securitizing subprime loans and argues that one of the primary causes of the subprime meltdown and the resulting economic collapse was the structure of securitization as applied to subprime and other non-prime residential loans, along with the resecuritization of the resulting mortgage-backed securities. Securitization weakened underwriting by discouraging originators from gathering “soft information” about the likelihood of borrower default and instead caused loan originators and other market participants to focus almost exclusively on such “hard information” as FICO scores and loan to value ratios. At each stage of the loan and securitization process, securitization encouraged market participants to push risk to the very edge of what the applicable market standards would tolerate, to make the largest, riskiest loans that could be sold on Wall Street, to bundle them using the fewest credit enhancements rating agencies would permit, and then to repeat the securitization process with many of the lower-rated mortgage-backed securities that resulted. Loan originators could profit by bargaining down the due diligence of other market participants and so reduce their own underwriting standards. Securitization also created a business model for subprime lenders whereby they could “profitably fail.” Thinly capitalized subprime lenders could generate large numbers of loans likely to default, along with substantial profits for the executives who directed them, and then simply exit the market when they predictably lost their access to the securitization pipeline
The Effects of Different Forms of Risk Communication on Judicial Decision Making
No full textWhen mental health experts provide information to courts on the results of a risk assessment conducted on a defendant or patient, they engage in “risk communication.” We examined the effects of four different forms of risk communication (prediction, categorical, risk factors/risk management, or hybrid) on judges’ (n = 253) perceptions of risk assessment evidence introduced in a case where they must decide whether to release from the hospital an individual found not guilty by reason of insanity. Judges who received information in the risk factors/risk management form were more likely to release the patient than were those who received prediction - based or categorical risk information. Judges with greater experience hearing cases involving risk assessment evidence were also more likely to release. Moreover, judges who had positive attitudes towards risk assessment and social science evidence in general, were more likely to find the risk assessment evidence introduced in the particular case to be understandable, relevant, and dispositive. Implications of the results for how mental health experts communicate risk information to the courts are discussed
Off-Court Misbehavior: Sports Leagues and Private Punishment
No full textThis article examines how professional sports leagues address (apparently increasing) criminal activity by players off of the field or court. It analyzes the power of professional sports leagues and, in particular, the commissioners of those leagues, to discipline wayward athletes. Such discipline is often met with great controversy - from players’ unions and commentators alike - especially when a commissioner invokes the “in the best interest of the sport” clause of the professional sports league’s constitution and bylaws. The article then contextualizes such league discipline in criminal punishment theory - juxtaposing punishment norms in public law with incentives and rationales for discipline in professional sports - and analyzes the legal and cultural limitations to this approach