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Embracing Deference
Get PDFA fundamental conceptual problem has long dogged discussions about scientific and other expert evidence in the courtroom. In American law, the problem was most famously posed by Judge Learned Hand, who asked: [H]ow can the jury judge between two statements each founded upon an experience confessedly foreign in kind to their own? It is just because they are incompetent for such a task that the expert is necessary at all. This puzzle, sometimes known as the expert paradox, is quite general. It applies not only to the jury as factfinder, but also to the judge as gate- keeper under the Daubert v. Merrell Dow Pharmaceuticals, Inc. regime and Federal Rule of Evidence 702. It also applies when there is no jury at all, whether in a bench trial, administrative proceeding, or civil law jurisdiction. When it comes to scientific and other specialized knowledge, legal actors are inevitably non-experts. And if legal actors are faced with the so- called battle of the experts, how are they to decide between the warring experts? After all, to quote Judge Hand again, [i]t is just because they are incompetent for such a task that the expert is necessary at all. As one of us has previously argued, because of this epistemic competency problem, the Daubert approach to expert evidence is a mistake. The solution to the problem of expert evidence is not judicial gatekeeping, but rather to change the substantive question asked of legal actors
Central Bank Immunity, Sanctions, and Sovereign Wealth Funds
Get PDFCentral bank assets held in foreign countries are entitled to immunity from execution under international law. Even as foreign sovereign immunity in general has become less absolute over time, the trend has been toward greater protection for foreign central bank assets. As countries expand their use of central banks, however, recent cases have limited immunity for certain kinds of sovereign wealth funds held by central banks. Sanctions on foreign central bank assets have also become more common, raising issues about the relation- ship between central bank immunity and the recognition of governments, the relationship between immunity and executive actions, and the denial of central bank immunity as a countermeasure. This symposium Article explores recent developments in central bank immunity focusing on sovereign wealth fund lit- igation in Sweden, U.S. sanctions on Afghan central bank assets, and the global response to sanctions imposed on Russian central banks following the invasion of Ukraine. Some of these actions and cases do not implicate foreign sovereign immunity. However, proposals to confiscate Russian central bank assets and U.S. litigation to turn Afghan central bank assets over to private plaintiffs, even if presented as countermeasures to secure reparations, would undermine signifi- cantly one of the increasingly rare areas of international economic law around which there is a global consensus: the immunity of foreign central banks from measures of execution
The Second Amendment\u27s People Problem
Get PDFThe Second Amendment has a people problem. In 2008, District of Columbia v. Heller expanded the scope of the Second Amendment, grounding it in an individualized right of self-protection. At the same time, Heller\u27s rhetoric limited the people of the Second Amendment to law-abiding citizens. In 2022, New York State Rifle & Pistol Ass\u27n v. Bruen doubled down on the Amendment\u27s self-defense rationales but, once again, framed the right as one possessed by citizens. In between and after the two Supreme Court cases, several lower federal courts, including eight federal courts of appeals, wrestled with the question whether the right to keep and bear arms is a citizen-only right. Although those courts proffered varying perspectives on the meaning of the people, they uniformly rejected challenges to the federal criminal ban on possession by unlawfully present persons and nonimmigrants.
In addition to the federal criminal ban, the immigration code allows for deportation of all noncitizens, including permanent residents, for firearms- related violations. In combination, the Supreme Court\u27s rhetoric, lower federal courts\u27 decisions, and federal criminal and immigration statutes excise noncitizens from the people of the Second Amendment.
This Article is the first to examine the relationship between the people, immigration status, and the right to keep and bear arms in the wake of both Heller and Bruen. My analysis argues that courts undertheorize the systemic effects of constricting the people to citizens or, more recently, countenance historical inquiries that yield incoherent results. Intratextual comparison of the people of the Second Amendment with the people of the First and Fourth Amendments fares no better. That appraisal also commands broader inclusiveness for the Second Amendment\u27s rightsholders than current jurisprudence permits. This Article concludes that a more coherent theory of Second Amendment rightsholders would necessarily include most noncitizens, at least when the right is grounded in self-defense from interpersonal violence. This conclusion casts doubt on current federal law that categorically criminalizes possession by certain groups of noncitizens, as well as deportation rules that banish all noncitizens for firearms violations. More capacious interpretations of the Second Amendment\u27s the people, in turn, help ensure noncitizens\u27 inclusion under other core constitutional protections
How Machines Reveal the Gaps in Evidence Law
Get PDFThis Symposium asks participants to reimagine the Federal Rules of Evidence on the fiftieth anniversary of their effective date. As part of that conversation, this short Essay argues that the Rules of Evidence contain critical gaps in terms of empowering litigants to meaningfully challenge the credibility of evidence. Specifically, the increasing use of machine-generated proof has made clear that evidence law does not offer sufficiently meaningful opportunities to scrutinize conveyances of information whose flaws cannot be exposed through cross-examination. These underscrutinized conveyances include machine-generated output, information conveyed by animals, and statements made by absent hearsay declarants. Even for some witnesses who can be cross-examined-such as eyewitnesses offering identifications and experts using a testable method-evidence law too often fails to subject their claims to meaningful scrutiny because of its overreliance on cross-examination.
As I explain below, these gaps have not always existed. That is, the rules of evidence have not always myopically focused on cross-examination as the primary means of testing human assertions, nor have they always excluded claims whose flaws cannot easily be tested by cross-examination from the scope of testimonial safeguards. Instead, this narrowing of evidence law appears to correspond with the rise of the lawyerly art of cross-examination in the mid-nineteenth century and a greater focus on the one testimonial infirmity of humans-insincerity-particularly suited to testing by cross-examination. Ironically, the legal case for a right to meaningfully scrutinize machine-generated proof might have been easier to make in 1823 than in 2023
To Preserve, Release, and Litigate: Dimensions of Executive Branch Transparency
Get PDFThe Trump campaign and presidency were marked by multiple controversies centered on transparencyor the lack thereof. Prior to his election, then‐candidate Donald Trump broke with presidentialcampaign norms by refusing to release his tax returns. Attempts by Democratic‐controlled Housecommittees and Democratic New York state officials to access President Trump\u27s tax records werecontested by Trump at every stage. The resulting court battles lasted throughout his presidency andeventually reached the U.S. Supreme Court.The Trump White House also broke with the Obamaadministration\u27s practice of releasing White House visitor logs, removing from public view the record ofwho visited the White House and when (Kennedy,2017). At the same time, Freedom of Information Act (FOIA) complaints and conflicts reached a record high, with greater delays faced by requesters, increased withholding of records, and suggestions of political appointee interference in the release of requested records.
Transparency conflicts continued well after the end of the Trump presidency. Trump sued the National Archives to prevent the agency from releasing documents to the January 6th Committee, which scrutinized the attack on the Capitol by the former president\u27s supporter
Through the Looking Glass with Alice: The Current Application and Future of Title IX in Athletics
Get PDFThis Article is a snapshot of the past pervasive discriminatory treatment of women in athletics and where women athletes and women’s athletics currently stand. It discusses some of the new challenges for Title IX enforcement—-female transgender athletes and treatment of name, image, and likeness revenues now open to college athletes. It reviews research regarding the physiological, hormonal, metabolic, body size and composition, and brain and neurological differences between men and women and how these factors impact both athletic performance and athletic interest. Finally, this Article concludes that the Title IX three-pronged test to assure gender equity in athletic participation opportunities takes us through the looking glass with Alice by failing to account for the realities of gender differences
Creating a People-First Court Data Framework
Get PDFMost court data are maintained--and most empirical court research is conducted--from the institutional vantage point of the courts. Using the case as the common unit of measurement, data-driven court research typically focuses on metrics such as the size of court dockets, the speed of case processing, judicial decision-making within cases, and the frequency of case events occurring within or resulting from the court system.
This Article sets forth a methodological framework for reconceptualizing and restructuring court data as people-first -centered not on the perspective of courts as institutions but on the people who interact with the court system. We reorganize case-level data around the individual, identifying and analyzing the touchpoints that individuals have had over time with a range of different courts. In doing so, we invoke language as a signaling device to suggest a different, more intentional way to think about courts and the way we study their structure, processes, and impact.
The pilot research study that serves as the foundation for this Article is the first of its kind to apply a people-first approach to a data set that includes both criminal and civil state court records drawn from a random sample of 885 people in Fulton County, Georgia, between 2016 and 2020. Our methodology and findings provide a new perspective on the interactions between individuals and the courts and generate important new data relevant to a range of research areas. This approach and its results also represent a key step forward in expanding the application of a people-first approach to decentralized court systems, including those at the state and local levels. In taking this step, we empower and encourage researchers and policymakers at all levels to center those who experience the impact of court systems rather than focusing exclusively on the systems themselves
The Visible Trial: Judicial Assessment as Adjudication
Get PDFOnly a small fraction of lawsuits ends in trial—a phenomenon termed the “vanishing trial.” Critics of the declining trial rate see a remote, increasingly regressive judicial system. Defenders see a system that allows parties to resolve disputes independently. Analyzing criminal and civil filings in federal district court for the forty-year period from 1980 to 2019, we confirm a steady decline in the absolute and relative number of trials. We find, however, this emphasis on trial rate obscures courts’ vital role and ignores parties’ goals. Judges adjudicate disputes directly by ruling or effectively through other assessments of the parties’ cases. Even as their absolute and relative numbers decrease, trials remain the most visible event in trial courts. The visible trial serves effectively as a guide star. Our findings warrant a fundamental reconceptualization of litigation as primarily about educating parties rather than about trying cases. The assessment theory proposed here views adjudication as a continuous, information-disclosing process that is guided by but not destined for trial. Our evaluation and expectations of the modern justice system should be focused on the effectiveness of judges as teachers
One Size Does Not Fit All: Alternatives to the Federal Rules of Evidence
Get PDFThe Federal Rules of Evidence have been so successful that many people equate them to the whole field of evidence law. But this is a false equivalence. Our world is complicated, diversified, and dynamic. So, too, is evidence law, which is like a rainforest in which the Federal Rules are simply the largest tree, not a forest unto themselves. In fact, the Federal Rules of Evidence are limited in their applicability due to three fundamental assumptions: the presence of a jury trial, an adversarial process, and witness oral testimony. The universe of dispute resolution, however, extends far beyond a contour that is covered by these three assumptions.
This Article illustrates the dominance of the Federal Rules of Evidence since their launch, explains why the Rules do not fit in numerous dispute- resolution contexts outside common-law jury trials, and shifts attention to three featured alternative evidence systems (whether extant or in draft form) from other parts of the world. These evidence systems look structurally and logically different from the Federal Rules but fit well in their own contexts. Such comparative analysis brings out important evidence-rulemaking themes that are traditionally underexplored by U.S. evidence scholars and legislators.
On the eve of the fiftieth anniversary of the Federal Rules of Evidence, the author stands at the crossroads of evidence-law development and projects that its next era will necessitate going back into the forest to explore different sets of evidence rules suitable in different dispute resolution settings. Such a shift will help release evidence law from the traditional trap of the common-law jury, significantly expand space for its continual growth, and further develop the law in a sophisticated, diversified way with built-in flexibility
Binding Hercules: A Proposal for Bench Trials
Get PDFIf you were a federal judge presiding over a bench trial, you probably would not want the Federal Rules of Evidence to apply to you. Sure, you might want to be insulated from privileged information. But you are, no doubt, capable of cool-headed, rational reasoning, and you have a realistic understanding of how the world works; if you got evidence that was unreliable or easy to overvalue, you could handle it appropriately. But surely, you would have the same desire if you were a juror--it is not your position as a judge that makes you want all the relevant evidence. And in either event, you would, perhaps, be overestimating your own abilities.
The Rules themselves give mixed messages about whether judges should apply them in bench trials. Formally, they apply. Federal Rule of Evidence 1101 provides that the Rules apply to proceedings before . . . United States district courts, in civil cases and proceedings, and in criminal cases and proceedings.
But several rules appear to assume that the evidence is being presented to a jury. For example, Rule 104(c) prescribes when a hearing on a preliminary question must be conducted so that the jury cannot hear it ; Rule 105 provides that if evidence is admissible for one purpose but not another--such as an out-of-court statement admissible for a non-hearsay purpose but inadmissible for its truth... the court must ... instruct the jury accordingly ; Rule 201(f) says the court must instruct the jury of the significance of a judicially noticed fact; Rule 403 allows courts to exclude evidence due to a danger of misleading the jury ; Rules 703 and 706 address when parties may disclose certain facts to the jury; and Rule 614 refers to a party objecting when the jury is not present. Perhaps the only rule that explicitly contemplates that there might not be a jury is Rule 1008, which addresses the functions of the court and the jury in a jury trial. The history of the Rules also points to a central role for the jury; they originated, at least in part, in response to a concern about the cognitive or decision-making capacities of jurors. As James Bradley Thayer famously observed, the exclusion of relevant evidence due to practical concerns stamp[s] the law of evidence as the child of the jury system