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Comment on Prof. Imwinkelried\u27s Formalism v. Pragmatism in Evidence: Reconsidering the Absolute Ban on the Use of Extrinsic Evidence to Prove Impeaching Untruthful Acts That Have Not Resulted in Conviction : Just What Evidence of Witness Misdeeds Does Federal Evidence Rule 608(B) Exclude?---Imwinkelried vs. Rothstein
Get PDFProf. Edward Imwinkelried, one of the country’s most renowned Evidence scholars, in a recent article in this journal, perceptively identifies three specific examples of evidence of a witness’s prior unconvicted-for misconduct which he correctly believes should be admissible to impeach the witness’s credibility in the discretion of the trial judge:
1. Evidence of demonstrably false previous accusations of rape against the present defendant by the complaining witness in a rape prosecution (assuming the rape shield would not exclude) which the witness will not admit to during cross examination;
2. Documentary evidence proving an unrelated misdeed of a testifying witness clearly evincing the witness’s lack of credibility, where the witness himself on cross exam could authenticate the document so it could be used conveniently and expeditiously without undue time consumption; and
3. Evidence of the result in an unrelated previous civil action, for example where the witness was a party and an adverse verdict clearly establishes his position was fabricated, or where he was only a witness but the verdict makes it clear the trier of fact rejected his contention as fabricated.
I agree with Prof Imwinkelried that these can be powerful pieces of evidence on occasion and should be admissible in the judge’s discretion upon consideration of such factors as probative value on the issue of the witness’s credibility, time consumption, and prejudice. But Prof. Imwinkelried and I disagree as to whether the literal language of Federal Rule of Evidence 608(b) bans them absolutely. Prof. Imwinkelried believes it does, and therefore should be amended. I believe it does not and therefore does not require amendment
Anti-Primacy: Sharing Power in American Corporations
Get PDFProminent theories of corporate governance frequently adopt primacy as an organizing theme. Shareholder primacy is the oldest and most used of this genre. Director primacy has grown dramatically, presenting in at least two distinct versions. A variety of alternatives have followed—primacy for CEOs, employees, creditors. All of these theories can’t be right. This article asserts that none of them are. The alternative developed here is one of shared power among the three actors named in corporations statutes with judges tasked to keep all players in the game. The debunking part of the article demonstrates how the suggested parties lack legal or economic characteristics necessary for primacy. The prescriptive part of the article suggests that we can better understand the multiple uses of primacy if we recognize that law is not prescribing first principles for governance of firms, but rather providing a structure that works given the economic and business environment in place for modern corporations where there is separation of function and efficiencies of managers as a starting point. Thus the familiar statutory language putting all power in the board must be read against the reality of the discontinuous nature of the board (and shareholder) involvement in governance. Corporate governance documents of the largest American corporations, as discussed in the article, are consistent with this reality, assigning management to officers and using verbs like oversee, review and counsel as the director functions. The last part examines dispute resolution and the role of judges in such a world, with a particular focus on the shareholder/director boundary. At this boundary there are two distinct judicial roles, the traditional role focusing on use of fiduciary duty to check conflict and other director incapacity and the less-recognized role of protecting shareholder self-help. In this more modern context shareholders, because of market and economic developments, are able to effectively participate in governance in a way that wasn’t practical three decades ago, when the key Delaware legal doctrines were taking root. What is particularly interesting here is how courts, commentators and institutional investors act in a way that is consistent with a shared approach to power, as opposed to the primacy of any of the theories initially suggested
\u3ci\u3e King v Burwell\u3c/i\u3e: Subsidizing US Health Insurance for Low- and Middle-Income Individuals
No full textIn King v. Burwell, the U.S. Supreme Court once again saved the Affordable Care Act (ACA) by upholding subsidies (tax credits) offered to low- and middle-income individuals for insurance bought on federal exchanges. A contrary opinion would have put at risk health insurance for 6.4 million Americans and threatened to destabilize insurance markets for millions more.
The ACA is supported by four interlocking reforms, each of which are necessary to realize its promise of expanding health care coverage: (1) guaranteed issue (prohibiting discrimination based on pre-existing conditions), (2) community rating (barring insurers from imposing higher premiums based on health status and prohibiting lifetime caps), (3) tax subsidies to offset the cost of premiums for low- and middle-income individuals, and (4) Medicaid expansion. King v. Burwell threatened to undermine the third pillar. Buried deep within the law, the ACA states that subsidies are available to “Exchange[s] established by the State.” Not imaging that their residents could be denied subsidies, 34 states chose to allow the federal government to run their exchanges. The Supreme Court ruled in favor of the government, recognizing that Congress would not have given states the option of having the federal government run their exchanges, while simultaneously dooming those exchanges to dysfunction.
With the ACA now safe from its latest—and it is to be hoped last—existential judicial challenge, attention must now turn to the law’s unfinished business. First, a confluence of judicial interpretation and political impasse has created a new Medicaid “donut hole,” with many earning too much to qualify for Medicaid but too little to receive ACA subsidies. States should close this hole, both to protect their most vulnerable citizens and to boost their own economies. Second, the law has left out approximately 11 million undocumented immigrants to the U.S. More than half are uninsured, leading to poor health outcomes, needlessly straining emergency services and safety-net hospitals, and endangering public health. Some localities have experimented with ways of expanding coverage, but national action is needed to guarantee universal health coverage
The Sustainable Development Goals: One-Health in the World’s Development Agenda
Get PDFThe Sustainable Development Goals (SDGs), adopted by the UN General Assembly in September 2015, embody a One-Health strategy—healthy people living on a habitable planet. Extending beyond the social development emphasis of the Millennium Development Goals (MDGs), which accelerated progress globally, though unequally, the SDGs also encompass a range of environmental and economic goals, with a health goal that is far more comprehensive than the infectious diseases and maternal/child health focus of the MDGs.
To be achieved, the SDGs require resources and political commitment that is yet to be demonstrated. With a cost that could reach $5 trillion for the SDGs overall, achieving health targets will require a mix of increase domestic resources, including taxes on unhealthy foods and products, international assistance, and innovative financing. Annual reviews should identify and monitor threats to the SDGs, both internal contradictions and contradictory government policies such as discriminatory laws, and the necessary rights-based pathways forward. To improve accountability, health information systems with disaggregated data should be prioritized, along with independent monitoring and key governance indicators. Ambitious national benchmarks, drawing on WHO strategies and action plans, could provide markers of success for presently vague health targets.
Three early indicators of progress on the health SDGs could be: 1) whether countries establish clear policies on universality, encompassing all people without discrimination, identifying and prioritizing populations with the least access; 2) whether universal health coverage fully incorporates population health; and 3) whether countries provide rapid and sustained increased funding for such necessities as adequate sanitation and nutritious food. A Framework Convention on Global Health, a global health treaty based in the right to health, could fill in critical gaps in the SDGs, creating accountability through capacity-building and compliance-enhancing mechanisms, establishing a financing framework, and ensuring right to health assessments and health in all policies. It could help establish a path forward based on equity and the right to health that would be truly transformative
What\u27s the Harm of Trademark Infringement?
Get PDFFor decades, the concept of actionable trademark infringement has been expanding. Source confusion, reverse confusion, approval/affiliation confusion, initial interest confusion, post-sale confusion, endorsement confusion, and so on, all have won cases for plaintiffs. Whether or not the confusion cost the plaintiff any sales, or was in any way material to consumers, our concept of trademark infringement now encompasses it. These expansions occurred for reasons that seemed sufficient to courts at the time, when advocates offered theories about how all these kinds of confusion could cause harm to the trademark owner. Primarily, courts feared that non-competing uses would preclude trademark owners from expanding into natural markets or tarnish its reputation among its existing consumers
Interview of Peter J. Williams conducted by Rosine Plank-Brumback on May 31, 2015
Get PDFInterview of Peter John Williams, Former Director for Non-Tariff Measures & Former Secretary of Ministerial Conferences, GATT Secretariat; Former EU Delegate for WTO Accessions, conducted by Rosine Plank-Brumback on May 31, 2015
Effectively Regulating E-Cigarettes and Their Advertising—and the First Amendment
Get PDFIf tobacco smoking did not exist in the United States, there would be no reason, from a public health perspective, to allow addictive, nicotine-containing e-cigarettes to be marketed and sold. Because e-cigarette use, by itself, is neither beneficial nor benign to users and nonusers, the only public health justification for allowing e-cigarettes in the existing U.S. market would be if doing so would not sustain or increase existing smoking levels but would help smokers quit completely or provide addicted smokers a less harmful way to obtain the nicotine they crave. Yet e-cigarettes are now pervasive in the U.S. market, being sold with unnecessary harmful characteristics and being advertised in ways that encourage youth experimentation and use. Unless effectively regulated, e-cigarette use will be more harmful than necessary and their advertising will work to: (a) increase initiation among both youth and non-tobacco-using adults; (b) prompt former smokers to relapse back into addicted nicotine use; (c) encourage smokers to use e-cigarettes where they cannot smoke; and (d) prompt smokers to switch to e-cigarettes instead of quitting all tobacco and nicotine use. This paper proposes a viable way to regulate e-cigarettes and their advertising both to minimize the health harms they might cause and to allow e-cigarettes to fulfill their potential as cessation aids or harm-reduction products. Normally, any efforts by FDA to establish effective advertising restrictions must accommodate considerable constraints from the First Amendment’s commercial speech protections. However, because of existing text in the Tobacco Control Act, on the effective date of the final FDA deeming rule that puts e-cigarettes under FDA’s active tobacco product jurisdiction all nicotine-containing e-cigarettes will be on the U.S. market illegally until they can obtain permissive orders from FDA. That situation should reduce applicable First Amendment constraints, providing FDA with a tremendous opportunity to place the kinds of substantial restrictions and requirements on e-cigarette advertising necessary to minimize their harmful aspects and maximize their potential to produce substantial net public health benefits
Unwrapping the Box the Supreme Court Justices Have Gotten Themselves Into: Internal Confrontations over Confronting the Confrontation Clause
Get PDFWilliams v. Illinois, handed down in 2012, is the latest in a new and revolutionary line of U.S. Supreme Court cases beginning with the 2004 decision of Crawford v. Washington which radically altered the Court\u27s former approach to the Constitutional Confrontation Clause. That clause generally requires persons who make written or oral statements outside the trial, that may constitute evidence against a criminal defendant, to take the witness stand for cross-examination rather than those statements being presented at the trial only by the writing or by another person who heard the statement.
Previous to Crawford, under Ohio v. Roberts, decided in 1980, the Court did not apply the requirement to statements made outside the trial if they were considered reliable. They were considered reliable only if they fit a traditional “firmly rooted” hearsay exception or were otherwise deemed reliable on the facts. But Crawford overruled Roberts. Crawford held that reliability is too subjective and flexible a concept, and that the Confrontation Clause by its terms does not command merely that evidence be reliable, but that reliability be determined in a particular way--by live cross examination. Thus Crawford decreed that henceforth, oral or written statements made outside of the trial that are “testimonial” cannot be admitted into evidence against the criminal defendant unless defendant has an opportunity to cross examine the maker at the trial or (if the maker is unavailable then) there was a sufficient earlier opportunity for cross examination. “Testimonial” generally speaking seemed to mean statements intended or understood to potentially supply evidence (perhaps only if the statement is acquired by agents of the state in a somewhat formal or solemn setting)
Ambiguous-Purpose Statements of Children and Other Victims of Abuse under the Confrontation Clause
Get PDFThe author examines in this paper two kinds of ambiguous-purpose out-of-court statements that are especially problematic under current Confrontation law--problematic in ways that we hope will be solved directly or indirectly by the Supreme Court when it renders its decision in Ohio v. Clark. The statements he examines are:
(1) Statements made by abused children concerning their abuse, for example to police, physicians, teachers, welfare workers, baby sitters, or family members, some of whom may be under a legal duty to report suspected abuse to legal authorities. At least some of these statements will be directly addressed by the Court in Ohio v. Clark.
(2) Statements made by adult victims of sexual assaults to specially trained medical personnel (sometimes known as S.A.N.E. nurses or members of D.O.V.E. hospital units, or S.A.R.T. units) whose task is simultaneously to medically treat the victim and to gather or preserve evidence for a legal case or investigation. These statements may be inferentially address by the Court in Ohio v. Clark.
U.S. Supreme Court Confrontation-Clause jurisprudence stemming from Crawford v. Washington (2004) holds that when a declarant (like the child or adult victim here) does not testify, her out-of-court statement’s admissibility against the alleged perpetrator in a criminal case is normally determined by what the “primary purpose” was when the statement was made, at least if it was made to law enforcement or its affiliates. If that “primary purpose” was prosecutorial or evidentiary the statement will ordinarily be inadmissible. If the purpose was something else—for example a primarily medical or treative purpose or a relatively immediate protective purpose or to deal with an on-going emergency—the statement is normally admissible insofar as the Confrontation Clause is concerned.
The main problem with the victims’ and children’s statements identified above, is the difficulty in determining their “primary purpose.” Is it medical? Legal? Protective? Is it responding to an emergency? A related problem is whether the person to whom the statement was made had a substantial enough connection to law enforcement or government (if such connection is an independent requirement for there to be a Confrontation issue). A subsidiary question is whether there has to be anything like a questioning or interrogation—or some kind of formality attending the taking of the statement--in order for the Confrontation Clause to be applicable
The Making of a Libertarian, Contrarian, Nonobservant, but Self-Identified Jew
Get PDFMany academics are unaware that I am Jewish, no doubt due, in part, to my last name as well as to my politics, Yet growing up as a Jew in Polish-Catholic Calumet City, Illinois and as a kid from Calumet City attending Temple in Hammond, Indiana made me quite conscious of the tyranny of the majority. This environment, together with the influence of my father, had a deep affect on my views of liberty, justice, individual rights, and the U.S. Constitution. In this brief essay, prepared for a symposium on “Judaism and Constitutional Law: People of the Book,” held at the DePaul University College of Law, I explain how being a contrarian Jew has affected my academic agenda, my scholarly commitments, and the future direction of my work. I also suggest implications of my latest work on Our Republican Constitution for Judaism itself