Evidence & Evidentiary Procedure eJournal最新文献_第2页

Questions from the Bench and Independent Experts: A Study of the Practices of State Court Judges 法官和独立专家提出的问题:对州法院法官实践的研究

Evidence & Evidentiary Procedure eJournal Pub Date : 2012-03-22 DOI: 10.5195/LAWREVIEW.2012.191

Andrew W. Jurs

{"title":"Questions from the Bench and Independent Experts: A Study of the Practices of State Court Judges","authors":"Andrew W. Jurs","doi":"10.5195/LAWREVIEW.2012.191","DOIUrl":"https://doi.org/10.5195/LAWREVIEW.2012.191","url":null,"abstract":"While the Daubert case and its progeny provided detailed guidance to judges on the substantive standard for expert gatekeeping, the court spent little time explaining the procedures to use to achieve that gatekeeping review. Justice Breyer’s concurrence in Joiner offered some suggestions on what procedures to use. Since Daubert in 1993, only a few studies have explored the methods judges actually use to perform their gatekeeping task. While they consistently find that judges see their role as more active since Daubert, they are less than complete on procedures of advanced factfinding. They also rely on surveys over a decade old. This Study offers new data to expand upon and update prior research in the area. Relying on survey responses of state court judges in the Midwestern United States, this Study explores how judges use advanced factfinding tools of the Rules of Evidence in their courtrooms. Some results are consistent with prior studies, particularly the responses on frequency of use of judicial questioning from the bench and appointment of independent experts. Yet by exploring the judicial responses across a variety of characteristics, some new and interesting results arise. Finally, the study provides the only post-Daubert data on the reasons why judges are reluctant to appoint independent experts under Rule 706. Those data contrast with prior studies in the area. By measuring the actual practices of state court judges, this Study explores the methods Justice Breyer suggested judges use in their Daubert gatekeeping, what tools are used and not used by the judiciary, and whether the aspirational goals of the Rules of Evidence match reality in courtrooms today.","PeriodicalId":228651,"journal":{"name":"Evidence & Evidentiary Procedure eJournal","volume":"86 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-03-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125442647","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}

引用次数: 1

An Economic Analysis of Fact Witness Payment 事实证人给付的经济学分析

Evidence & Evidentiary Procedure eJournal Pub Date : 2011-05-04 DOI: 10.1093/JLA/3.1.139

E. Kontorovich, E. Friedman

引用次数: 10

Enforcement of U.S. Electronic Discovery Law Against Foreign Companies: Should U.S. Courts Give Effect to the EU Data Protection Directive? 针对外国公司的美国电子证据开示法的执行:美国法院是否应该对欧盟数据保护指令施加影响?

Evidence & Evidentiary Procedure eJournal Pub Date : 2010-08-19 DOI: 10.2139/SSRN.1661862

Kristen A. Knapp

{"title":"Enforcement of U.S. Electronic Discovery Law Against Foreign Companies: Should U.S. Courts Give Effect to the EU Data Protection Directive?","authors":"Kristen A. Knapp","doi":"10.2139/SSRN.1661862","DOIUrl":"https://doi.org/10.2139/SSRN.1661862","url":null,"abstract":"Although the U.S. Supreme Court first considered the conflict between U.S. discovery rules and foreign non-disclosure law in 1958, a clear standard regarding how to enforce U.S. law against foreign domiciled companies has yet to emerge. As a result of the 2006 ammendments to the U.S. Federal Rules of Civil Procedure concerning electronic discovery (“e-discovery�?) procedures “[m]ore and more companies with global operations are finding themselves enmeshed in e-discovery that requires a greater understanding of the issues and laws from a global perspective�? because “[i]t is challenging to navigate and manage e-discovery when you have parent companies based overseas or U.S.-based companies with foreign subsidiaries.�? This paper looks at, in light of the 2006 amendments and the lack of case law regarding the affect of the 2006 amendments, whether the enforcement techniques, as applied to “paper�? discovery should be applied to e-discovery and whether there is anything specific to the nature of e-discovery that necessitates a change in the application of the law. Specifically, the paper addresses how the European data privacy regime may affect the application of paper discovery enforcement techniques to e-discovery. The paper suggests that it would be unwise for U.S. courts to afford the European Data Privacy regime significant deference. Instead, the European Data Privacy regime should be treated with skepticism, similarly to how the U.S. courts have viewed “blocking statutes�? contained in foreign law. In particular, treating the EU Data Privacy regime with skepticism will help to prevent the creation of perverse incentives for companies to store their data abroad that hope to avoid legitimate discovery production requests under the Federal Rules of Civil Procedure, by raising the transaction costs for such behavior.","PeriodicalId":228651,"journal":{"name":"Evidence & Evidentiary Procedure eJournal","volume":"12 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-08-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125199898","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}

引用次数: 1

Daubert and Other Gatekeeping Challenges of Antitrust Economists 道伯特和反垄断经济学家的其他把关挑战

Evidence & Evidentiary Procedure eJournal Pub Date : 2010-03-01 DOI: 10.2139/ssrn.1337081

J. Langenfeld, Christopher Alexander

引用次数: 3

Originality 创意

Evidence & Evidentiary Procedure eJournal Pub Date : 2009-09-01 DOI: 10.4135/9781526415806.n6

Gideon Parchomovsky, Alex Stein

引用次数: 20

Evidentiary Issues in Housing Court 房屋法庭的证据问题

Evidence & Evidentiary Procedure eJournal Pub Date : 2009-07-29 DOI: 10.2139/SSRN.1441504

J. Marter, Gerald Lebovits

引用次数: 0

Unchaste and Incredible: The Use of Gendered Conceptions of Honor in Impeachment 不贞洁与不可思议:性别荣誉概念在弹劾中的运用

Evidence & Evidentiary Procedure eJournal Pub Date : 2008-12-01 DOI: 10.2307/20454696

J. Simon-Kerr

{"title":"Unchaste and Incredible: The Use of Gendered Conceptions of Honor in Impeachment","authors":"J. Simon-Kerr","doi":"10.2307/20454696","DOIUrl":"https://doi.org/10.2307/20454696","url":null,"abstract":"This paper demonstrates that the American rules for impeaching witnesses developed against a cultural background that equated a woman's \"honor,\" and thus her credibility, with her sexual virtue. The idea that a woman's chastity informs her credibility did not originate in rape trials and the confusing interplay between questions of consent and sexual history. Rather, gendered notions of honor so permeated American legal culture that attorneys routinely attempted to impeach female witnesses by invoking their sexual histories in cases involving such diverse claims as title to land, assault, arson, and wrongful death. But while many courts initially accepted the notion that an unchaste woman might be a lying witness, most jurisdictions ultimately rejected unchastity impeachment as illogical or irrelevant. In the process, the gendered notion of honor may have influenced judicial preference for reputation evidence over evidence regarding specific acts as a form of impeachment. The unchaste/incredible equation remained viable in the law of rape as courts continued to insist that the victim's sexual history was relevant to credibility, consent, or both. Although legal reforms have narrowed the use of sexual history evidence in rape trials, the concept that a woman's sexual virtue signifies her credibility survives today in moral turpitude law and in the treatment of prostitution as a crime that bears on credibility.","PeriodicalId":228651,"journal":{"name":"Evidence & Evidentiary Procedure eJournal","volume":"11 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2008-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124131854","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}

引用次数: 11

Pre-Trial Defence Rights and the Fair Use of Eyewitness Identification Procedures 审前辩护权与目击证人鉴定程序的合理使用

Evidence & Evidentiary Procedure eJournal Pub Date : 2008-04-17 DOI: 10.1111/j.1468-2230.2008.00696.x

Andrew D. Roberts

引用次数: 5

The Fifth Amendment Disclosure Obligations of Government Employers when Interrogating Public Employees 第五修正案:政府雇主询问公职人员时的披露义务

Evidence & Evidentiary Procedure eJournal Pub Date : 2008-03-22 DOI: 10.2139/ssrn.1112286

L. Niehaus

{"title":"The Fifth Amendment Disclosure Obligations of Government Employers when Interrogating Public Employees","authors":"L. Niehaus","doi":"10.2139/ssrn.1112286","DOIUrl":"https://doi.org/10.2139/ssrn.1112286","url":null,"abstract":"Under established Fifth Amendment principles, if a government employer interrogates an employee on penalty of discipline or job loss, none of the statements obtained during that interrogation may be used against the employee in subsequent proceedings, and the government employer cannot constitutionally discipline or fire the employee for failure to waive this right to immunity. Courts are divided, however, on the issue of whether a government employer has a duty to give public employees notice of these rights and immunities prior to interrogation. One group of circuits adopts the \"no affirmative tender\" approach, which rejects a notice requirement and automatically attaches immunity when public employees are compelled to waive their right to immunity and answer potentially incriminating questions on penalty of disciplinary action or job loss. A second group of circuits adopts the \"duty to advise\" approach, which requires government employers to give employees notice of their rights and immunities under the Fifth Amendment, as well as the consequences to any decisions they may make. This article argues that courts should adopt the \"duty to advise\" approach, for four reasons. First, this approach eliminates the potential for public employees to attempt to exercise their constitutional privilege against self-incrimination and unknowingly subject themselves to discipline. Second, it eliminates the potential that the government will use its position of power to manipulate or exploit public employees. Third, the duty imposed on the government in comparison to the protection afforded to the employees would be inherently low. Fourth, it facilitates the government in the process of fact-finding by giving the employees an incentive for honesty.","PeriodicalId":228651,"journal":{"name":"Evidence & Evidentiary Procedure eJournal","volume":"51 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2008-03-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115509558","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}

引用次数: 0

Rules of Proof, Courts, and Incentives 证明规则、法院和激励机制

Evidence & Evidentiary Procedure eJournal Pub Date : 2008-03-01 DOI: 10.2139/SSRN.936399

D. Demougin, Claude Fluet

引用次数: 116