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On Proving Mabrus and Zorgs
Get PDFAn unfortunate disconnect exists in modern evidence scholarship. On one hand, a rich literature has explored the process of legal proof in general and legal standards of proof in particular. Call this the macro level of legal proof. On the other hand, a rich literature has explored the admissibility rules that regulate the admission or exclusion of particular types of evidence (such as hearsay, character evidence, expert testimony, and so on). Call this the micro level of legal proof. Little attention, however, has focused on how the issues discussed in these two distinct strands of evidence scholarship intertwine. One important connection concerns the process and the standards for proving admissibility or exclusion when admissibility or exclusion depends on disputed facts. This Article illustrates how the theoretical debates regarding the proof process as a whole also apply to questions of admissibility. Federal Rule of Evidence 104 creates a two-part structure for the admissibility of evidence that largely mirrors proof issues that apply to a case as a whole some issues are decided by a fact finder, and some issues are decided under a reasonable jury standard. A classic article by John Kaplan coined the terms mabrus and zorgs to refer to these different types of admissibility determinations. Extending Kaplan\u27s analysis, this Article argues that the best account of what grounds the proof process as a whole (the macro level) that is, an explanatory account that focuses on the relationships between the evidence and the competing explanations of the parties also applies to admissibility determinations (the micro level)
The Superfluous Rules of Evidence
Get PDFThere are few American legal codifications as successful as the Federal Rules of Evidence. But this success masks the project\u27s uncertain beginnings. The drafters of the Federal Rules worried that lawmakers would not adopt the new rules and that judges would not follow them. As a result, they included at least thirty rules of evidence that do not, in fact, alter the admissibility of evidence. Instead, these rules: (1) market the rules project, and (2) guide judges away from anticipated errors in applying the (other) nonsuperfluous rules.
Given the superfluous rules\u27 covert mission, it should not be surprising that the rules\u27 drafters were not transparent about their nature. Instead, the drafters incorporated these rules so seamlessly into the overall project that their evidentiary insignificance goes largely unnoticed. This Essay pulls back the curtain to reveal the superfluous nature of many of the celebrated rules of evidence. The presence of so many superfluous rules says something interesting about the rules project and sheds light on how the evidence rules should be taught, interpreted, and applied
Something Doesn’t Add Up: Solving DNA Forensic Science Statistical Fallacies in Trial Testimony
Get PDFWhile the limitations of traditional forensic sciences are generally recognized, the presentation of DNA forensic science statistical testimony has widely evaded criticism. This lack of oversight has allowed four DNA forensic science statistical fallacies to plague the legal system: providing statistics without empirical support, the individualization fallacy, the prosecutor’s fallacy, and the defense attorney’s fallacy. These fallacies pose a significant risk to the preservation of justice, as erroneous DNA forensic science statistical testimony plays a critical role in wrongfully convicting innocent defendants.
This Note suggests administering standard jury instructions every time DNA forensic science statistical testimony is presented during trial. This solution evades common hurdles scholars have faced while trying to increase the efficacy of the presentation of forensic sciences, such as high information costs, political support, and sufficient capital. Overall, the standard jury instructions presented provide a hopeful outlook on decreasing the prevalence of wrongful convictions caused by the presentation of DNA forensic science statistical fallacies
Against Political Theory in Constitutional Interpretation
Get PDFJudges and academics have long relied on the work of a small number of Enlightenment political theorists-—particularly Locke, Montesquieu, and Blackstone—-to discern meaning from vague and ambiguous constitutional provisions. This Essay cautions that Enlightenment political theory should rarely, if ever, be cited as an authoritative source of constitutional meaning. There are three principal problems with constitutional interpretation based on eighteenth-century political theory. First, Enlightenment thinkers developed distinct and incompatible theories about how to structure a republican form of government. That makes it difficult to decide which among the conflicting theories should possess constitutional significance. Second, the Framers did not write the Constitution in the image of the philosophy of Montesquieu, Locke, or Blackstone. Instead, they developed a new form of government to meet what they perceived to be the needs of a nascent republic. And third, the Constitution itself departs from the dominant strands of Enlightenment political theory in crucial respects. For example, while some Enlightenment theorists advocated for precisely divided federal powers, the Framers favored a system of procedural checks, not formal separation. Thus, while Enlightenment works can be normatively persuasive or act as a guide to historical meaning, they should be treated as presumptively irrelevant in constitutional interpretation. Unless the party who would invoke an Enlightenment political theorist can produce evidence of consensus or common ground about that theory from an episode of American constitutional debate, the theorist’s prescriptions are no more probative than any other work of normative political theory
Aadhaar: India’s National Identification System and Consent-Based Privacy Rights
Get PDFIndia’s national identification program, Aadhaar, created the largest national biometric database in the world. While the program is touted as voluntary, the increasing dependence on it, and the laws surrounding it, make it de facto mandatory. This Note examines the social and legal landscapes surrounding the Aadhaar program along with the principles of data privacy and biometric data collection in the European Union and the United States to show how those principles can and should apply to the Aadhaar system.
This Note suggests that the way to strengthen the Aadhaar system’s privacy regime is by balancing the principles of necessity and consent. This can be done through the national data privacy legislation that is currently in the works. Finally, this Note emphasizes the importance of the privacy rights and individual interests of the people, especially for a program where consent is meant to be the basis for data collection and in a country where privacy is a fundamental and constitutional right
Title IX vs. NCAA: A Gameplan for Championship Equity
Get PDFIn 1972, Congress enacted Title IX of the Education Amendments Act (Title IX) to prohibit sex-based discrimination in “any education program or activity receiving federal financial assistance.” While the original legislation did not stipulate “athletics,” Title IX has had a profound impact on intercollegiate sports by expanding the athletic opportunities for women as a covered “program or activity.” However, fifty years after the enactment of Title IX, there are still significant disparities between men’s and women’s intercollegiate athletics, most notably at the high-profile National College Athletics Association (NCAA or Association) Championships.
In 2021, the NCAA hosted the men’s and women’s Division I Basketball Championship tournaments. A viral video featuring inferior weight rooms for women served as a catalyst to address longstanding gender equity issues in intercollegiate athletics. In response to the widely publicized inequities, the NCAA commissioned an independent gender equity review of all NCAA Championships. The external review confirmed gender inequities in ten women’s intercollegiate sports and raised the issue of whether the NCAA should be subject to Title IX.
Educational institutions are subject to Title IX as “recipients” of federal financial assistance, and courts have found violations when institutions fail to provide female student-athletes with equal opportunities to participate or equitable benefits and services. In contrast to its member institutions, the NCAA has avoided compliance with Title IX on the basis that the Association is not a “recipient” of federal financial assistance. In 1999, the US Supreme Court ruled in NCAA v. Smith that the NCAA’s receipt of membership dues from educational institutions did not constitute the “receipt” of federal aid. Based on this narrow ruling, the NCAA was not subject to Title IX.
The Smith decision exposed the “recipient” loophole in Title IX legislation, which has enabled the NCAA to operate above the law for decades, resulting in significant gender disparities at NCAA Championships. However, Justice Ginsburg’s decision in Smith left open an alternative legal theory to potentially bring the NCAA under the scope of Title IX. The NCAA’s “controlling authority” over federally funded educational institutions’ athletic programs could trigger Title IX coverage, irrespective of whether the NCAA itself is a “recipient” of federal aid. Analyzed within the context of NCAA Championships, where the NCAA controls the postseason intercollegiate tournaments, a court could find that the NCAA is a “controlling authority” over its member institutions and liable for gender inequities.
To the extent courts are unable to bring the NCAA under the scope of Title IX, Congress recently introduced two bills that address gender equity in intercollegiate athletics. In June 2021, Congress passed a concurrent resolution that stipulates Title IX applies to the NCAA; in August 2022, the Senate reintroduced the College Athletes Bill of Rights, which includes a Title IX section that mandates intercollegiate athletic associations shall not discriminate based on sex. While these bills do not have the full force of law, they clearly indicate Congress’ intent to prevent sex-based discrimination in intercollegiate athletics and require the NCAA to comply with Title IX.
This Article asserts that the NCAA should be covered by Title IX, and the Association should comply with the federal law’s mandate to prohibit sex-based discrimination in “any education program or activity.” To achieve gender equity at NCAA Championships, there are three pathways to bring the NCAA under Title IX coverage: the existing federal law could be interpreted to cover the NCAA, Congress could pass a new statute to cover the NCAA, or the NCAA could voluntarily comply with Title IX. This article analyzes these three alternatives and concludes that the NCAA should voluntarily comply with Title IX and uphold the Association’s stated commitment to gender equity
Navigating the Tension Between Preservation and Development Pressure: Cities’ Imperative to Save Independent Music Landmarks While Simultaneously Providing for Growth
Get PDFWhile cities can use their power to enact zoning ordinances and create historic preservation districts, these preservation ordinances vary widely across the United States, from allowing almost any type of development to strictly limiting any new development that does not match existing height, density, and use patterns. Within this framework, state legislatures have often limited the types of regulatory actions cities may take, as cities are merely political subdivisions of the state. Some states—known as “Dillon’s Rule” states—restrict cities from taking novel legislative approaches to existing policy issues, such as affordable housing, unless those powers are expressly provided to the municipalities by the state legislature. “Home rule” states, on the other hand, grant broad legislative authority to cities to act on any local issues not preempted or foreclosed by the state legislature. The current affordable housing and homelessness crises in cities across the United States cause some scholars to argue against traditional historic preservation broadly, as it often results in overinclusive or unnecessary preservation that hinders efforts to develop more densely.
In fast-growing places like Nashville, Tennessee, with strong music and entertainment scenes, there is a tension between preserving notable music landmarks and the pressure to develop housing in higher densities. These cities need the power and means to generate innovative methods of determining which sites to preserve while upzoning surrounding areas. Cities tend to over-prioritize either preservation or new development without creating a logical method for preserving only those sites with continued relevance and use while facilitating new development on other sites. Where applicable, states should legislate to make it easier for Dillon’s Rule and partial or limited home rule cities to create innovative preservation schemes prioritizing sites of importance without preserving entire swaths of neighborhoods or districts unnecessarily and for aesthetic reasons alone. Cities should use existing means to develop zoning schemes with a more individual site analysis approach, allowing for the preservation of individual buildings while increasing density around them with incentives for housing development
Copyright\u27s Lost Art of Substantial Similarity
Get PDFThree copyright doctrines focus more than any others on the contributions of authors to visual artworks: originality, substantial similarity, and fair use. Questions regarding the aesthetics of works of authorship filter into judicial determinations under each of these doctrines. This Article comments on a trend among courts hearing visual arts cases to de-emphasize substantial similarity analyses and shift infringement determinations almost entirely to the fair use defense.
The trend has troubling procedural fairness consequences. Without a full evidentiary record about the artworks they encounter in infringement cases, courts’ ability to properly evaluate whether the use of appropriated material in a second work is justified, or whether expression has been taken from the first work for some other (infringing) purpose, is compromised. If courts fail to properly understand works because they do not fully analyze basic infringement claims, it can also affect later users and owners of artworks.
Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith illustrates the conflicts appellate courts face when they are forced to analyze cases solely through the lens of fair use. This Article embraces Warhol’s majority opinion but suggests that the dissent’s concerns about judicial reluctance to engage with and understand creative works aesthetically are not entirely misplaced. Such engagement should happen earlier in the infringement inquiry, however—not merely as part of a fair use analysis. This Article expands the 2022 Meyer Lecture delivered by this Author shortly after oral arguments concluded in the Warhol litigation. It urges that to ensure the best outcomes for all artists, courts should apply a procedurally conscious approach to analyzing copyright infringement cases involving visual artworks. Specifically, district courts should establish a solid record that the first work is original; then inquire whether the second work infringes, applying the test for substantial similarity. Only if they find infringement should courts consider the affirmative defense of fair use.
Following the proper procedural path is crucial to balancing all parties’ interests—particularly when the works of two artists are involved. Allowing both the first and the second artists equal voice in representing the originality of their contributions is necessary to ensure an adequate factual record in copyright litigation. Courts require this record to anticipate the impact of their rulings on future litigants and the art world at large. These goals are consistent with copyright jurisprudence, which encourages creativity and original contributions to the creative lexicon
Bending the Rules of Evidence
Get PDFThe evidence rules have well-established, standard textual meanings—meanings that evidence professors teach their law students every year. Yet, despite the rules’ clarity, courts misapply them across a wide array of cases: Judges allow past acts to bypass the propensity prohibition, squeeze hearsay into facially inapplicable exceptions, and poke holes in supposedly ironclad privileges. And that’s just the beginning.
The evidence literature sees these misapplications as mistakes by inept trial judges. This Article takes a very different view. These “mistakes” are often not mistakes at all, but rather instances in which courts are intentionally bending the rules of evidence. Codified evidentiary rules are typically rigid, leaving little room for judicial discretion. When unforgiving rules require exclusion of evidence that seems essential to a case, courts face a Hobson’s choice: Stay faithful to the rules, or instead preserve the integrity of the factfinding process. Frequently, courts have found a third way, claiming nominal fidelity to a rule while contorting it to ensure the evidence’s admissibility.
This Article identifies and explores this bending of the rules of evidence. After tracing rule bending across many evidence doctrines, the Article explores the normative roots of the problem. Codification has ossified evidence law, effectively driving judges underground in the search for solutions to their evidentiary dilemmas. Rather than trying to suppress rule bending, we advocate legitimizing it. Specifically, the Article proposes a residual exception that would enable trial courts to admit essential evidence in carefully defined circumstances. Such an exception would bring rule bending out of the shadows and into the light with benefits to transparency, legitimacy, and accountability. And perhaps most importantly, it will reestablish trial courts as a partner in the development of evidence law
