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(Partial) Clarity: Eliminating the Confusion About the Regulation of the Fact ual Bases for Expert Testimony Under the Federal Rules of Evidence
Get PDFExpert testimony is offered at the vast majority of trials in courts of general jurisdiction in the United States. Federal Rules of Evidence 702-06 govern the admissibility of such testimony. In its May 15, 2021, report accompanying the most recent proposed amendment to Rule 702, the Advisory Committee on the Evidence Rules asserts that “many courts” have misapplied Rule 702 by holding that questions as to whether “the expert has relied on sufficient facts or data ... are questions of weight and not admissibility.” Rule 702(b) states that to be admissible, an expert opinion must be “based on sufficient fact or data.” The Committee adds that this error has occurred “in a fair number of cases.”
The Committee’s criticism is valid—but incomplete. The central contention of this Article is that another major, contributing cause to the problem is the courts’ misunderstanding of the relationship between the expression “scientific ... knowledge” in Rule 702 and the expressions “facts” or “facts or data” which appear in Rules 702(b), 702(d), 703, and 705. This Article contends that properly interpreted, the latter expressions include only case-specific information, not research data relevant to the validation of the expert’s methodology as reliable “scientific ... knowledge.”
Positing that interpretation, this Article then attempts to clarify the judge’s and jury’s roles in evaluating the credibility, quality, and quantity of the factual bases for proffered expert opinions. More specifically, the Article argues that the jury has the exclusive authority to pass on the credibility of the testimony about the factual bases of admitted opinions. However, before admitting the opinion, the judge must assess the quality of the type of case-specific information that the expert contemplates relying on. If the information takes the form of secondhand reports about out-of-court statements, under Rule 703 the judge must determine whether the “experts in the particular field would reasonably rely on those kinds of facts or data.”
Moreover, again before allowing the expert to submit his or her opinion to the jury, under Rule 702(b) the judge must independently assess the quantity of the information. For example, if an accident reconstruction expert proposes opining about the point of impact (POI) in a case, the judge must inquire whether the expert has identified enough case-specific information such as testimony about the vehicles’ final resting places and the location of the debris to adequately support a conclusion about POI.
These conclusions not only respect the legitimate authority of both judge and jury, but they also give the Rule provisions on expert testimony logical coherence
Making the Best from a Mess: Mental Health, Misconduct, and the Insanity Defense in the VA Disability Compensation System
Get PDFThe disability compensation system implemented by the Department of Veterans Affairs ( VA ) is highly technical and complex. Before veterans reach questions concerning entitlement to benefits or the amount of compensation, they must first achieve basic eligibility for VA benefits. That involves receiving a discharge that is honorable for VA purposes. For some former servicemembers seeking benefits, using the VA\u27s insanity defense to excuse misconduct leading to a less-than-honorable discharge may be the best avenue for obtaining compensation. The VA insanity provision contemplated in 38 U.S.C. s. 5303(b) and defined in 38 C.F.R. s. 3.354 is the only defense that allows a veteran to get around all statutory and regulatory benefits. It reads as follows:
An insane person is one who, while not mentally defective or constitutionally psychopathic, except when a psychosis has been engrafted upon such basic condition, exhibits, due to disease, a more or less prolonged deviation from his normal method of behavior; or who interferes with the peace of society; or who has so departed (become antisocial) from the accepted standards of the community to which by birth and education he belongs as to lack the adaptability to make further adjustment to the social customs of the community in which he resides.
A cursory reading shows that the insanity defense is anything but clear and straightforward. This Article will examine this issue in three parts. Part I briefly discusses necessary background information, including military discharges and how they are treated by the VA and the military service branches. Part II then explores the construction and history of the VA insanity defense and how it compares to conceptions in the psychological field and corresponding provisions in the criminal defense system. Finally, Part III explains the regulation\u27s usefulness to advocacy in the veterans\u27 benefits system as it is currently constructed
A Safe Culture for Neuroscience
Get PDFWhen examining the future impact of neuroscience on the law, the first step requires narrowing the scope of the inquiry: advances in neuroscience are exciting, but the beneficial or harmful effects of those advances will depend on the specific culture in which they occur. In some cultures—such as in Norway or Sweden—integrating advances in neuroscience into the criminal justice system is likely to enhance understanding and improve the treatment of offenders and potential offenders. In the neoliberal culture of the United States, advances are more likely to exacerbate the profound wrongs of the criminal justice system rather than ameliorate them. The important question for neoliberal cultures is whether advances in neuroscience might contribute to the reform of those cultures. While neuroscience can contribute to that goal, there is a danger that neuroscience advances might encourage the radical individualist orientation of neoliberalism and revive a “nothing works” attitude toward rehabilitation. The benefits of neuroscience are more likely to emerge when the worst elements of neoliberal culture have been reformed
When Legal Incapacity Becomes a Lack of Personhood: Why a Ward\u27s Ability to Sue in Their Own Name Should be a Fundamental Aspect of Virginia Guardianship
Get PDFIt is a fundamental failing of any legal system when it is unable to protect the most vulnerable within its population. Whether we are comfortable admitting it or not, guardian abuse of incapacitated wards has been well-documented across all fifty states. Virginia is no exception, and this lack of oversight leaves one of our most vulnerable populations without recourse. This Note argues that by simply granting a ward the ability to bring suit in their own name, Virginia may strike a significant blow to the dysfunction that systematically infects the guardianship process. This Note highlights Virginia statute and case law to draw attention to ineffective guardianship regulations that put incapacitated persons at risk. This Note will analyze Virginia statute and how the overall lack of agency for wards leaves a gaping hole for guardianship abuse to fester. This Note will also examine two recent cases, Lopez-Rosario v. Habib and Cook v. Radford Community Center, that continued to restrict a ward’s ability to bring suit in their own name. Finally, this Note will address how the legal system has failed incapacitated wards by trying their hands behind their backs—if a ward cannot bring suit in their own name, then there is little recourse for abuse suffered at the hands of a guardian. To conclude, this Note will discuss potential steps forward, and methods that Virginia courts and legislature can take to ensure that a vulnerable population does not continue to slip through the cracks of the legal system
Atomistic Antitrust
Get PDFAntitrust is atomistic: deliberately focused on trees, not forests. It pays attention to the consequences of individual acts alleged to be anticompetitive.
That focus is misplaced. Companies and markets don\u27t focus on one particular act to the exclusion of all else. Business strategy emphasizes holistic, integrated planning. And market outcomes aren\u27t determined by a single act, but by the result of multiple acts by multiple parties in the overall context of the structure and characteristics of the market.
The atomistic nature of modern antitrust law causes it to miss two important classes of potential competitive harms. First, the focus on individual acts, coupled with the preponderance of the evidence standard for proving a violation, means that antitrust can\u27t effectively deal with what we might call probabilistic competitive harm: multiple acts, any one of which might or might not harm competition. Second, atomistic antitrust tends to miss synergistic competitive harm: acts which are lawful when taken individually but which combine together in an anticompetitive way.
Unfortunately, modern antitrust law has strayed too far down the atomistic pathway. Courts and agencies too often take a narrow, transaction-specific focus to challenged conduct. Instead of asking is the overall behavior of this company reducing competition in the market, they focus on a particular merger or challenged monopolistic practice in isolation. Courts and agencies need to move beyond atomistic antitrust and take a more holistic look at the circumstances and effects of an overall pattern of conduct. Our goal in this Article is to set out a framework for integrated antitrust, in which individual actions can be understood not just on their own but also as part of a comprehensive whole. Only by doing so can the legal system both return antitrust to its roots and bring antitrust into the modern context of the business decisions that courts must analyze today
The Supreme Court Decisions on Guns and Abortion Relied Heavily on History. But Whose History?
Get PDFElection Surveillance
Get PDFFor most of this country\u27s history, we have relied on human eyes and ears to oversee our system of elections. Modern surveillance tools, from cell phones to video streaming platforms, are now cheap and ubiquitous. Technology holds great promise to increase election transparency. But the 2020 election confirmed what has become quite clear: the use of technology to record election processes does not always serve the goal of reassuring the public of the integrity of elections; in fact, it can do the opposite. As legislatures around the country reexamine rules governing elections following the 2020 election, an underexplored question is whether election surveillance should be promoted or curbed. The line between democracy-enhancing election transparency and civil liberty-trampling election surveillance is fuzzy. This Article examines the history and present of election surveillance and reviews legislation and litigation surrounding it. The goal is to better understand how election surveillance can promote confidence in election outcomes while dodging the dark sides of both transparency and surveillance. As historic levels of public mistrust of election outcomes threaten American democracy, Election Surveillance examines these urgent questions
