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It started with a cat fight; a story and a call to grow out of the Arab-Israeli conflict
No full textThis is the story of how the Arab-Israeli conflict originally began centuries ago
Why Federal Rule of Evidence 403 is Unconstitutional, and Why That Matters
Get PDFIt might seem at best quixotic, and at worst absurd, to assert that Federal Rule of Evidence 403-an iconic evidentiary exclusionary rule providing that relevant evidence can be excluded if it is too time-consuming or distracting-is unconstitutional. Yet, if the Sixth and Seventh Amendments to the Constitution-respectively preserving the right to a criminal jury and a civil jury- are to be taken seriously, that conclusion not only is plausible, but perhaps inescapable. More surprisingly and consequentially, deep thinking about the constitutionality of FRE 403 exposes that there may be constitutional concerns with large swaths of the Federal Rules of Evidence, the Federal Rules of Criminal Procedure, the Federal Rules of Civil Procedure, and Supreme Court jurisprudence.
The argument attacking the constitutionality of FRE 403 is simple to state, at least in the first instance. FRE 403 permits the exclusion of relevant evidence, which FRE 401 defines as evidence making a fact of consequence more or less probable. If constitutionally a jury is the exclusive fact finder on a particular issue, and if a piece of evidence makes a fact of consequence to that issue more or less likely, then it would seem there is no way constitutionally to keep that evidence from the jury, at least not on a justification of more efficient trials and, in the judge\u27s view, more accurate verdicts. The Supreme Court has held that neither efficiency nor accuracy is a basis for constricting the right to a trial by jury. Yet, that is the effect and goal of FRE 403: The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.
In the end, this article argues for two initially startling propositions. The constitutional right to trial by jury largely prevents a trial judge from regulating the presentation of evidence to ensure a rationally efficient trial and accurate verdict. And no academic, lawyer, or judge has evaluated the argument before now. To make these arguments, Section II of this article will trace the surprisingly recent lineage of evidentiary exclusionary rules and the rationales advanced by them, all of which post-date the constitutional enshrinement of jury trial rights, and none of which takes that enshrinement into account. Section III of this article will review the increasingly forgotten history of the Sixth and Seventh Amendment guarantees of a right to trial by jury, with particular focus on the recognition by the Framers that jurors had, at best, flawed capabilities, yet still were preferred to judges as decision makers at trial. In other words, the Framers chose juries over judges with their eyes open. Section IV of this article then turns specifically to the jurisprudence recognizing the jury not just as the trial fact finder, but as the exclusive fact finder. Section V of this article then will evaluate the constitutionality of FRE 403. Section VI of this article will address, in overview, the question of why it matters
Improvidently Granted: Why the En Banc Federal Circuit Chose the Wrong Claim Construction Issue
Get PDFThe United States Court of Appeals for the Federal Circuit recently granted en banc review in Lighting Ballast Control LLC v Philips Electronics North America Corp to decide whether to afford deference to a district court’s interpretation of patent claims, a step that has been heralded as potentially “lead[ing] to fundamental, far-reaching changes in patent law and patent litigation strategies.” Over the next few months, the parties, scores of amici, and commentators will spend reams of paper and untold amounts of money arguing whether claim construction—interpreting the short, numbered paragraphs at the end of the patent that define the patentee’s legal rights—should continue to be reviewed de novo or should be reviewed more deferentially. These efforts will be futile.
The Federal Circuit should be commended for addressing claim construction en banc for a fourth time in twenty years. Claim construction is the single most important event in any pa-tent case. It is a threshold question for virtually every other issue and is often case dispositive or, at least, case determinative. Scholars, judges, and practitioners criticize the Federal Circuit’s claim construction doctrine for creating unpredictability and uncertainty, high reversal rates, panel dependence, disincentives to settle, and increased litigation costs. These problems normally are ascribed to one or both of two causes: (1) institutional design, and primarily the Federal Circuit’s de novo review of claim construction; and (2) a deep and persistent methodological split over the relative effect on claim interpretation of the description of the invention in the patent specification and the “ordinary” meaning of claim language as derived from dictionaries, expert testimony, and other extrinsic sources.
It is not surprising that the Federal Circuit chose the first issue to review en banc. The standard of review for claim construction has been the more popular target for scholars and judges, with deferential review seen as a panacea that will cure all that ails the claim construction precedent. Yet, it was the wrong choice. Increased deference to district court claim constructions will do little or nothing to improve claim construction as long as the methodological split remains. And because the proper standard of review depends on the nature of the claim construction inquiry, the Federal Circuit cannot even effectively resolve this issue without first resolving the methodological schism.
The best path forward for the Federal Circuit is to dismiss the grant of en banc review in Lighting Ballast as improvidently granted and wait for an en banc petition that presents the methodological split. This will not happen. Instead, the Federal Circuit likely will adopt a more deferential standard of review, and practitioners and scholars will herald a new day of certainty and predictability in claim construction, only to find a few years from now that claim construction is just as unpredictable and uncertain, panel dependent, and prone to reversal as ever
Sailing Close to the Wind: Human Rights Council Fact-Finding in Situations of Armed Conflict -- The Case of Syria
Get PDFProgressive Realization Without the ICESCR: The Viability of South Africa\u27s Socioeconomic Rights Framework, and its Success in the Right to Access Health Care
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Watch What You Say (and Do): The Use of Settlement Negotiations and Mediation Conduct to Prove Bad Faith Under California\u27s Uniform Trade Secrets Act
Get PDFThe Americans with Disabilities Act: Who Pays for Loopholes in the ADA? A Look at the Responsibility of Successive Owners for Properties Built in Violation of the ADA
Get PDFWhy Dennis?
Get PDFThis article briefs the legal history and significance of the Supreme Court case Dennis v. United States, 341 U.S. 494 (1951). In Dennis, the Supreme Court upheld the constitutionality of a federal criminal statute, officially known as the Alien Registration Act of 1940, but more commonly referred to as the Smith Act, after its sponsor, Representative Howard Smith (D. Va.). The Smith Act made it a crime to teach and advocate the violent overthrow of the government or to set up an organization that engaged in such teaching and advocacy. In other words, it criminalized a certain kind of expression
Legal Education at a Crossroads: Innovation, Integration, and Pluralism Required!
Get PDFWe conclude in this Article that expanded practice-based, experiential education will provide foundational learning for the successful transition from law student to law practice, and that clinical education (in-house clinics, hybrid clinics, and externships) is crucial to the preparation of competent, ethical law graduates who are ready to become professionals. We urge law schools to require each graduate complete a minimum of twenty-one experiential course credits over the three years of law school, including at least five credits in law clinics or externships. Twenty-one required credits (or roughly 25 percent of the eighty-three required credits for graduation from an American Bar Association (ABA)-approved law school) would bring legal education closer to, although still below, the experiential and clinical education course requirements of other professions