Evidence & Evidentiary Procedure eJournal最新文献

{"title":"Dying Declarations: A Comparative Analysis of Admissibility and Evidentiary Value","authors":"Aditi Agarwal","doi":"10.2139/ssrn.3638815","DOIUrl":"https://doi.org/10.2139/ssrn.3638815","url":null,"abstract":"This research paper aims to deliver a comparative analysis of three common law jurisdictions, namely, India, the U.S., and the U.K., regarding the admissibility and evidentiary value of dying declarations in the legal system. The scope for studying admissibility has been limited to the nature of proceedings, the death of the declarant, the expectation of death, and the cause or circumstances resulting in the declarant’s death. ","PeriodicalId":228651,"journal":{"name":"Evidence & Evidentiary Procedure eJournal","volume":"21 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-06-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125631491","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Probability, Presumptions and Evidentiary Burdens in Antitrust Analysis: Revitalizing the Rule of Reason for Exclusionary Conduct","authors":"Andrew I. Gavil, S. Salop","doi":"10.2139/ssrn.3523361","DOIUrl":"https://doi.org/10.2139/ssrn.3523361","url":null,"abstract":"The conservative critique of antitrust law has been highly influential and has facilitated a transformation of antitrust standards of conduct since the 1970s and led to increasingly more permissive standards of conduct. While these changes have taken many forms, all were influenced by the view that competition law was over-deterrent. Critics relied heavily on the assumption that the durability and costs of false positive errors far exceeded those of false negatives. \u0000 \u0000Many of the assumptions that guided this retrenchment of antitrust rules were mistaken and advances in the law and in economic analysis have rendered them anachronistic, particularly with respect to exclusionary conduct. Continued reliance on what are now exaggerated fears of “false positives,” and failure adequately to consider the harm from “false negatives,” has led courts to impose excessive demands of proof on plaintiffs that belie both established procedural norms and sound economic analysis. The result is not better and more reasonable antitrust standards, but instead an embedded ideological preference for non-intervention that creates a tendency toward false negatives, particularly in modern markets characterized by economies of scale and network effects. \u0000 \u0000In this article, we explain how these erroneous assumptions about markets, institutions, and conduct have distorted the antitrust decision-making process and produced an excessive risk of false negatives in exclusionary conduct cases involving firms attempting to achieve, maintain, or enhance dominance or substantial market power. To redress this imbalance, we integrate modern economic analysis and the teaching of decision theory with the foundational conventions of antitrust law, which has long relied on probability, presumptions, and reasonable inferences to provide more effective means for evaluating competitive effects and resolving antitrust claims.","PeriodicalId":228651,"journal":{"name":"Evidence & Evidentiary Procedure eJournal","volume":"2 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-01-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114981516","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Development of Payment Systems in Tanzania: A Discussion on the Laws Governing Electronic Cheque Tanzania","authors":"Asherry Magalla","doi":"10.2139/ssrn.3254257","DOIUrl":"https://doi.org/10.2139/ssrn.3254257","url":null,"abstract":"This paper is about the potential understanding of the development of Information and Communication Technology in Tanzania, e-payment (electronic cheque) respectively. Further, the paper assesses the development of cheque system (origin, meaning, and forms of cheque) from traditional means to modern means that is electronic cheque system and the law governing it. The most important part of the paper is on the analysis of the laws dealing with electronic cheque and the admissibility of an electronic cheque system in Tanzania, particularly on how these new laws (the Electronic Transactions Act No.13 of 2015, the National Payment Systems Act NO.4 of 2015, Cyber Crime Act, No.14 of 2015, the Tanzania Automated Clearing House Rules and other related laws) which have provided for the same. The questions guiding this paper are, whether the electronic cheque system in Tanzania is protected by the law, whether the law has provided for the conditions for electronic cheque, whether we have electronic clearing house and system and whether electronic cheque can be admissible before the court of law as evidence in both civil and criminal action. As the fact that electronic cheque is discussed, then we cannot escape a briefly details on electronic evidence, as electronic cheque may form part and parcel of electronic evidence when required to be so.","PeriodicalId":228651,"journal":{"name":"Evidence & Evidentiary Procedure eJournal","volume":"16 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-09-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125209718","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Court-Appointed Experts and Accuracy in Adversarial Litigation","authors":"Chulyoung Kim, Paul S. Koh","doi":"10.2139/ssrn.2777114","DOIUrl":"https://doi.org/10.2139/ssrn.2777114","url":null,"abstract":"Concerned about evidence distortion arising from litigants' strong incentive to misrepresent information to fact-finders, legal scholars and commentators have long suggested that the court appoint its own advisor for a neutral piece of information about the dispute. This paper studies the incentive problem faced by the litigants when the judge seeks advice from the court-appointed expert. Within a standard litigation game framework, we find a trade-off in utilizing the court-appointed expert: although it helps the judge obtain more information overall, thereby reducing the number of mistakes at trial, it hampers the litigants' incentive to supply expert information, which undermines the adversarial nature of the current American legal system.","PeriodicalId":228651,"journal":{"name":"Evidence & Evidentiary Procedure eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128955123","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Presumption of Negligence","authors":"Alice Guerra, Barbara Luppi, F. Parisi","doi":"10.2139/ssrn.2577416","DOIUrl":"https://doi.org/10.2139/ssrn.2577416","url":null,"abstract":"This paper is about the incentive effects of legal presumptions. We analyze three interrelated effects of legal presumptions in a tort setting: (1) incentives to invest in evidence technology; (2) incentives to invest in care-type precautions; and (3) incentives to mitigate excessive activity levels. We suggest that the overlooked interaction between evidence and substantive tort rules is an important dimension that should inform the choice of legal presumptions. After considering the traditional factors that guide the choice of legal presumptions in tort law, we introduce the concept of “best discovery-bearer” to capture some of the factors that should guide the choice of legal presumptions. According to our analysis, the best-discovery-bearer criterion requires a shift of the burden of proof to the parties (a) who can most effectively invest in evidence technology; (b) whose precautions are more inelastic relative to discovery errors; and (c) who are not already burdened by the residual liability.","PeriodicalId":228651,"journal":{"name":"Evidence & Evidentiary Procedure eJournal","volume":"55 5","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114135336","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Behavioral Probability","authors":"Alex Stein","doi":"10.4337/9781849805681.00008","DOIUrl":"https://doi.org/10.4337/9781849805681.00008","url":null,"abstract":"Throughout their long history, humans have worked hard to tame chance. They adapted to their uncertain physical and social environments by using the method of trial and error. This evolutionary process made humans reason about uncertain facts the way they do. Behavioral economists argue that humans’ natural selection of their prevalent mode of reasoning wasn’t wise. They censure this mode of reasoning for violating the canons of mathematical probability that a rational person must obey. This chapter challenges both parts of this ambitious claim. Based on the insights from probability theory and the philosophy of induction, I argue that a rational person need not apply mathematical probability in making decisions about individual causes and effects. Instead, she should be free to use common sense reasoning that generally aligns with causative probability. I also show that behavioral experiments uniformly miss their target when they ask reasoners to extract probability from information that combines causal evidence with statistical data. Because it is perfectly rational for a person focusing on a specific event to prefer causal evidence to general statistics, those experiments establish no deviations from rational reasoning. Those experiments are also flawed in that they do not separate the reasoners’ unreflective beliefs from rule-driven acceptances. The behavioral economists’ claim that people are probabilistically challenged consequently remains unproven.","PeriodicalId":228651,"journal":{"name":"Evidence & Evidentiary Procedure eJournal","volume":"44 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132151701","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Communication and Interpretation Challenges Related to Economic Evidence in Trade Disputes","authors":"Marios C Iacovides, M. Jansen","doi":"10.1017/9781316534922.009","DOIUrl":"https://doi.org/10.1017/9781316534922.009","url":null,"abstract":"Recent years have witnessed numerous instances in which economic evidence has been submitted to adjudicators in the context of WTO disputes. As it turns out, adjudicators have used this evidence only hesitantly as a basis for their decisions. In this paper we argue that a number of communication and interpretation challenges arising from the use of quantitative economic evidence can explain this phenomenon. In particular, we argue that it is in the current context difficult for adjudicators to assess the reliability and (un)biasedness of such evidence. Guidelines on how to assess quantitative evidence and benchmarks against which to evaluate the quality of such evidence may represent a useful if not necessary step in order to raise the acceptance of the use of quantitative evidence in trade disputes.","PeriodicalId":228651,"journal":{"name":"Evidence & Evidentiary Procedure eJournal","volume":"71 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-12-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131492598","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Copyright, Causality, and the Courts","authors":"M. Einhorn","doi":"10.2139/SSRN.2406392","DOIUrl":"https://doi.org/10.2139/SSRN.2406392","url":null,"abstract":"Reviews statute and common law decisions as they relate to the court's discernment of a causal connection from a copyright infringement to defendant revenues.","PeriodicalId":228651,"journal":{"name":"Evidence & Evidentiary Procedure eJournal","volume":"33 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-03-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116891995","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Litigating Article III Standing: A Proposed Solution to the Serious (But Unrecognized) Separation-of-Powers Problem","authors":"Martin H. Redish, Sopan Joshi","doi":"10.2139/SSRN.2318806","DOIUrl":"https://doi.org/10.2139/SSRN.2318806","url":null,"abstract":"The various doctrines of subject-matter jurisdiction represent some of the most important limitations on the powers of the federal judiciary, and the Supreme Court has repeatedly said that Article III standing, which enforces the Constitution’s “case or controversy” requirement, is the most important of these jurisdictional doctrines. So a federal court that exercises its coercive power over litigants by entering a final judgment without first ensuring that the plaintiff has Article III standing would plainly violate the separation of powers. This much should be indisputable. But what if a federal court exercises its coercive power over litigants before entry of final judgment — say, by unlocking the doors to general discovery that is likely to be so expensive that it effectively coerces the defendant into an in terrorem settlement of a weak claim? Simple logic would suggest that the court should correspondingly shift earlier its resolution of the plaintiff’s Article III standing as well. Yet courts inexplicably defer resolving contested issues of standing when raised by defendants, instead treating Article III standing as if it were just another merits issue: something to be plausibly alleged in a complaint, supported by substantial evidence (taken as true) at summary judgment, and eventually proved by a preponderance of evidence at trial. We argue that this approach is wrong, because it potentially subjects litigants to years of coercive proceedings absent a genuine case or controversy. Instead, we propose that courts exclusively and definitively resolve contested issues of Article III standing, no matter when they arise in the litigation, using Rule 12(b)(1) of the Federal Rules of Civil Procedure — including by holding evidentiary hearings and making credibility determinations as necessary. This approach would ensure that courts do not stray beyond the constitutionally dictated boundaries of their power by coercively affecting the primary conduct of litigants without first ensuring the existence of a genuine case or controversy.","PeriodicalId":228651,"journal":{"name":"Evidence & Evidentiary Procedure eJournal","volume":"79 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-08-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123712168","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Neglect the Base Rate: It's the Law!","authors":"C. Engel","doi":"10.2139/SSRN.2192423","DOIUrl":"https://doi.org/10.2139/SSRN.2192423","url":null,"abstract":"If accurate prediction is the goal, and if information about the unconditional probability of the predicted event is available, a strong case can be made for using this information, i.e. for a Bayesian approach to inference. Not so rarely, the law calls for accurate prediction, e.g. if a bailing decision hinges on an estimate of recidivism risk. Yet for other questions of law, and for the law of evidence in particular, accuracy is not the exclusive goal. Substantive law determines who should bear the risk that doubt cannot be removed. These rules decide whether several individuals, or several acts for that matter, shall be treated as members of a class. Applying Bayes’ rule also implicitly treats the person or the action in question as a member of a class. If in conflict, the normative decision of substantive law overrides Bayes’ rule, and forces judges and administrators to neglect the base rate.","PeriodicalId":228651,"journal":{"name":"Evidence & Evidentiary Procedure eJournal","volume":"92 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133531032","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}