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Judicial Enforcement of Evidence Law
No full textThe truth matters. At least it should. In the courtroom, truth can serve as the cornerstone of justice, liberating the innocent, vindicating victims, and holding the guilty to account. Indeed, truth is such a normative imperative that an entire legal discipline now focuses on fostering its discovery at trial—evidence law. By regulating both the reliability of proof and the rationality of cognitive inferences, evidence law seeks to help factfinders discern truth and reach an accurate verdict. And given the importance of that role, one might naturally assume that the strict enforcement of evidence law would be a legal mandate of the utmost importance.But that assumption is wrong. Our legal system’s commitment to truth is overshadowed by a near-religious commitment to the adversarial process. And far from prioritizing verdict accuracy, the adversarial process actively subverts the discovery of truth. Adversarialism, for instance, dictates that evidentiary rules have no force absent ad hoc objections by a party. Moreover, in the absence of an objection, judges typically hold their tongues and admit misleading and prejudicial evidence by rote. Predictably, fetishizing adversarialism in this way has proven problematic. Attorney enforcement of evidence law has produced a deeply disturbing record of incompetence, dishonesty, and discriminatory animus.Reform is therefore essential. This Article reveals that, despite its modern ubiquity, evidentiary adversarialism rests on a tenuous foundation. History offers no compelling justification for its initial emergence, and contemporary legal authority fails to explain its continued prominence. Close scrutiny thus demonstrates that compulsory evidentiary adversarialism is a myth, an errant assumption that has calcified into a deleterious norm. The Article therefore proposes a better path forward. Because evidentiary adversarialism’s legal basis is illusory, the judiciary should enforce evidence law sua sponte, an inquisitorial intervention that is both precedented and justified. Complementary judicial enforcement of evidence law would improve verdict accuracy, combat systemic inequities, and reaffirm our legal system’s commitment to the truth
Pro Bono Week Oct 2025 Book Display 03
No full textClose-up shot of the book, Pro Bono Practice & Legal Ethics by Kenneth Manaster, Alan W. Scheflin, and Viva Harris in display for National Pro Bono Week in the law library October 2025.https://scholarship.law.tamu.edu/pro-bono-week-2025-photos/1003/thumbnail.jp
Indigenous Women Book Display 2025 17
No full textClose up of book display created by Women of Color Collective in the law library October 2025 highlighting the book Highway of Tears by Jessica McDiarmid.https://scholarship.law.tamu.edu/indigenous-women-2025-photos/1014/thumbnail.jp
Indigenous Women Book Display 2025 13
No full textClose up of book display created by Women of Color Collective in the law library October 2025 highlighting the book Ceremony by Leslie Marmon Silko.https://scholarship.law.tamu.edu/indigenous-women-2025-photos/1010/thumbnail.jp
Indigenous Women Book Display 2025 02
No full textPoster created by Women of Color Collective on display in the law library in October 2025.https://scholarship.law.tamu.edu/indigenous-women-2025-photos/1001/thumbnail.jp
No News (Read: Successful Lawsuits Against Mediators) Is Good News?
Full text linkMediators are busy doing important work—and mediators are human and sometimes make mistakes. Without losing sight of the important work mediators do every day within our justice system, this Article offers three observations about the fact that mediators are fallible. It concludes with some normative considerations about how we might think about each of the three observations.
First, I summarize research spanning more than two decades of litigation involving mediators. I provide a new taxonomy, derived from actual lawsuits, describing the bases upon which former disputants have complained about their mediators. I suggest that there are examples of at least five different flavors of alleged mediator malpractice, and for each I provide at least one concrete example of a lawsuit filed in recent decades.
Second, I demonstrate that although enough claims have been filed to permit the creation of a taxonomy of complaints, such claims remain vanishingly rare. Although millions of disputants have gone through mediations in the last two decades, exhaustive multi-method research has yielded records of fewer than one hundred lawsuits against mediators. And even in those cases that are filed, virtually none of them result in any finding of liability against the mediator.
Third, I suggest that six aspects of the current legal landscape serve to provide virtual de facto immunity for mediators. Four of these features are functions of the way the law treats all contract and tort law claims. Two other features of the legal landscape (confidentiality shields and immunity doctrines), however, are unique to mediation.
I conclude with a normative observation about mediators’ continued de facto immunity from successful malpractice complaints. I argue that consumers of mediation services, particularly the disputants themselves, ought to have confidence (1) that if they believe they were injured by a mediator, they will have a chance to make their case, and (2) that in the event they are successful with their claim, they will have an opportunity to be made whole. To the extent a trend is discernable with respect to the legal landscape for mediation, the trend is toward even greater protections against claims of mediator malpractice. Mediators may enjoy the status quo and the current trajectory—for now—but I am not convinced that this trend benefits our field or the disputants we serve in the long-term
Erasing Illusions: A Statutory Framework for Deletion in U.S. Data Privacy
Full text linkSince the passage of the California Consumer Privacy Act in 2018, states have rushed to pass their own consumer data protection laws, filling the glaring absence of comprehensive federal privacy law in the United States. These state privacy statutes are largely modeled after the European Union’s (“EU’s”) General Data Protection Regulation (“GDPR”), which introduced the “right to be forgotten.” This right permits EU residents to request that organizations delete their personal information. U.S. state laws have followed the GDPR by adopting a “right to delete.” Yet these new state laws provide little detail about the right to delete and lack mechanisms to ensure enforcement, meaning the U.S. right to delete offers a hollow promise of consumer control. Moreover, the current U.S. privacy regime—including state common law, enforcement by state attorneys general, sector-specific federal laws, and actions by the Federal Trade Commission—fails to compensate for the bare-bones approach to deletion rights employed at the state level. Privacy statutes should include a combination of individual deletion rights and “structural” business requirements to fully protect deletion interests and create meaningful consumer control. Statutes should include broadly drafted deletion provisions, verification requirements, a private right of action, data destruction requirements, data mapping requirements, third-party deletion obligations, and agency reporting mechanisms
World Wide Whac-a-Mole: The Inadequacies of the DMCA to Protect Copyright Holders Online and Why Artificial Intelligence is the Solution
Full text linkCongress created the Digital Millennium Copyright Act (DMCA) at the dawn of the internet age 25 years ago. It addressed the needs and concerns of Online Service Providers (OSPs) in the nascent cyber landscape, but the DMCA must now be reformed to meet the needs of Web 2.0. The DMCA’s refusal to condition §512(c) safe harbor protection on OSPs’ platform monitoring is no longer practical. This now produces results contrary to the Copyright Act’s purpose of encouraging the creation and dissemination of new works. Copyright owners are fighting a losing battle against infringing OSP users and the DMCA’s notice-and-takedown procedures are little help against the sea of infringing material on Web 2.0. Thus, §512(c) safe harbors must be reformed to condition protection on OSPs taking affirmative anti-infringement action. Artificial intelligence (AI), a powerful and ever-improving tool, equips OSPs to monitor user-generated content for infringing material and puts OSPs in a better position than any other entity to combat the online copyright infringement epidemic. This Comment argues that all Web 2.0 OSPs—especially social media platforms—should begin using AI screening tools to monitor their sites—a process that would greatly shrink §512(c) safe harbor protection and greatly reduce copyright infringement to the mutual benefit of copyright owners and OSPs
Incentivizing Bad Behavior Through Copyright
Full text linkThis Essay comes in response to the comments of Professors Margaret Chon, Cathay Smith, and David Taylor as part of the Texas A&M Journal of Property Law’s Symposium featuring a discussion on my book Intellectual Property and Immorality: Against Protecting Harmful Creations of the Mind. In this Essay, I argue that the law should refrain from copyrighting pornographic content. This conclusion is based on a factual assumption and a moral principle. The factual assumption is that pornographic content is harmful to society. The moral principle is that applying law to incentivize harmful conduct undermines the effectiveness of law. My argument, then, is that employing copyright law to incentivize the harmful outcomes that follow from creating and consuming pornographic content—even if to accomplish a social policy goal that seems praiseworthy—will undermine the effectiveness of law. To do so opens the door to using any and all laws in a way that is clearly immoral for a seemingly good purpose. In short, the end does not justify the means
Genetic Property Rhetoric and the Public Domain
Full text linkAmong the many themes that illuminate Jorge Contreras’s The Genome Defense, this Essay focuses on property. It considers the rhetorical role played by property in convincing both courts and the public that patenting genetic data was legally and ethically objectionable. This Essay begins by locating property—and public property—as a major theme in the dialogue surrounding the Myriad litigation. It then situates this rhetorical move in the context of property-talk generally, highlighting the distinctiveness of leveraging public rather than private ownership as a means of accessing moral intuitions. Finally, this Essay reflects on what the use of public property rhetoric in Myriad can tell us about how we talk and think about ownership, both public and private, and how that rhetoric can contribute to a more nuanced understanding of the institution of property