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Overcoming Judicial Innumeracy: A Proposal to Bring the Venerable Process of Peer Review to the Enduring Problem of Courts’ Scientific Illiteracy
Get PDFLawyers are not known for their proficiency in math and science. Most of us who went to law school reached a point in our math and science studies when we realized that neither medicine nor engineering were likely to be successful career paths. It is these lawyers who become judges. Yet, the United States Supreme Court has increasingly put the burden for deciding complex scientific and technical questions in the hands of judges. This Article explores this trend of putting greater responsibility for deciding scientific and technical issues on judges, particularly in the areas of evidence law, administrative law, and constitutional law. I do not, however, uniformly decry this trend. In many contexts, both as a matter of legal doctrine and as an empirical matter, judges are the appropriate decision makers for scientific and technical questions. The problem is that they, on the whole, are so unqualified for this task. The question, then, is how courts might be better prepared to make informed decisions about scientific and technical questions. I propose a solution that comes from the scientific enterprise itself, peer review. While not a perfect solution, peer review has proved to be the best available option for evaluating the validity and value of scientific research. I explore how a formal procedure of peer review might be employed by courts to provide them with independent assessments of expert reports
Appropriations Presidentialism
No full textSince the start of the second Trump administration, the executive branch has attempted to change how federal spending works by asserting unilateral, centralized authority to condition, delay, cancel, or otherwise disrupt federal obligations and expenditures without regard to longstanding legal understandings and norms. This appropriations presidentialism is unprecedented in scope and degree, and it threatens to weaken a key congressional check on executive policy, while also disrupting the settled expectations of civil servants, contractors, grantees, program beneficiaries, and others who were counting on continued federal funding for certain programs or activities. Those injured by these executive actions are understandably turning to courts for redress. But while courts have an important role to play in maintaining checks and balances, excessive judicial oversight of federal spending risks further shifting control away from Congress and exacerbating the potential for disruption of funding recipients’ expectations.This Essay documents this new appropriations presidentialism and offers preliminary reflections on appropriate responses. Noting that many important threshold questions about the role of courts in this area are unsettled, the essay urges courts addressing spending disputes to proceed with caution and due attention to the complex tradeoffs that attend judicial intervention in this area. In addition, it urges courts to attend carefully to the specifics of the appropriations and authorizing laws that govern individual programs and activities, even in the face of sweeping executive claims of blanket authority. And finally, it stresses that there is ultimately no substitute for Senators’ and Representatives’ energy and attention when it comes to maintaining Congress’s constitutional authority over the public purse
Rap Snitches: A New Framework to Evaluate Rap Lyrics and Creative Expressions as Evidence
No full textRap music has earned its prominent place in American music culture.1 It provides a unique creative outlet for artists to share their experiences and criticize the systems in which they live. Rap lyrics, often metaphorical or exaggerated, have been weaponized by prosecutors to attack the character of artist-defendants at a level not seen with other modes of creative expression. The lyrics of an artist are turned against them in a manner that invites unfair prejudice and improper character evidence into legal proceedings. In the 2020s, major progress has been made to curb this practice, with several jurisdictions introducing legislation that would limit the use of creative expression, such as rap lyrics, as evidence in trials. While these proposed laws are a significant step to protecting creative expression, they leave gaps that allow prosecutors to continue their misuse of lyrics as evidence. This Note argues that an effective creative expression evidence rule must have the following characteristics: (1) a presumption of inadmissibility, (2) a distinct framework to investigate whether a lyric can be properly interpreted literally, thereby rebutting the presumption of inadmissibility, (3) an exception for lyrics that create a cause of action by themselves, and (4) a requirement that creative expression evidence be presented to a jury in the least prejudicial medium available. This Note invites legislators wishing to protect creative expression to consider Rule X, a model rule that combines the strengths of current legislation to strike a balance between protecting creative expression and ensuring such expression cannot be used to shield wrongdoings or genuine confessions with immunity
Insurance Under Fire: Assessing How California’s Insurance Industry is Tackling the Wildfire Crisis and What’s Next
No full textCalifornia is currently facing an insurance crisis. The increased impact of climate change, including extreme droughts and wildfires, poses new risks to the insurance industry, especially when it comes to homeowner’s insurance. Insurance providers have limited their homeowner coverage, with many companies leaving the state entirely due to the undervaluation of climate risk in the policies they provide. A so-called “climate insurance bubble” is already beginning to burst. The state’s last-resort public insurance program, the FAIR Plan, has expanded rapidly to fill in for the lack of insurance providers in the state. But because FAIR Plan policies are expensive and limited, many Californians are forced to go without any home insurance coverage at all.1 This Note will examine California’s ongoing insurance crisis, focusing on the factors driving the increased severity and frequency of wildfires in the state. It will then explore the impact of these wildfires on the housing market and provide an overview of California’s insurance regulations and the current state of the insurance market. The Note will highlight the drawbacks and benefits of sustainable Insurance Strategy, and offer recommendations to strengthen wildfire insurance regulation by incorporating more consumer-focused strategies. The recommendations include providing additional financial incentives for homeowners to fireproof their properties, expanding wildfire preparedness education, and rebuilding communities affected by fires with greater resilience by utilizing smarter, more sustainable land use practices
