The fate of evidence law: Two paths of development

Evidence law was famously deemed ‘the child of the jury’, its development widely perceived as a by-product of the jury trial. Conventional wisdom tells us that juries, because of their cognitive and epistemic failings, can hardly be trusted and thus need rules of evidence to steer them in the right direction. Therefore, given that jury trials are vanishing in the United States and other common law countries, we must question whether the traditional evidence-law model is sustainable. At the same time that juries have been on the decline, rapid developments in science and technology have led to new forms of evidence, including scientific evidence, electronic evidence and process-based evidence. Presenting these new types of evidence at trials, however, often creates a mismatch with the traditional evidence-law framework. A systematic redesign of 21st-century evidence law to better accommodate the intensified interplay between science, technology and the law seems to be the next natural development. This essay explores these two distinct paths of evidence law—the old, jury-driven model and a new, science-directed model—and argues for preserving the old path while at the same time spending more resources and making greater effort to accommodate these new forms of evidence.

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Considering Precedent in Louisiana: Balancing the Value of Predictable and Certain Interpretation with the Tradition of Flexibility and Adaptability

European Journal of Comparative Law and Governance ◽

10.1163/22134514-45060001 ◽

2013 ◽

pp. 1-19

Author(s):

Mary Garvey Algero

Keyword(s):

United States ◽

New York ◽

Common Law ◽

New York State ◽

Civil Law ◽

The United States ◽

Stare Decisis ◽

The Common ◽

Judicial Opinions ◽

The Right

Despite the fundamental differences between the doctrines employed in common law and civil law (or mixed) jurisdictions when it comes to the respect paid to prior court decisions and their weight or value, United States courts that follow the common law doctrine of stare decisis have embraced some of the flexibility inherent in the civil law doctrine, and civil law and mixed jurisdictions throughout the world, including Louisiana, that use the doctrine of jurisprudence constante seem to have come to value the predictability and certainty that come with the common law doctrine. This Article suggests that Louisiana courts are striking the right balance between valuing the predictability and certainty of interpretation that comes with a healthy respect for precedent and maintaining the flexibility and adaptability of the law by not strictly considering precedent a source of law. This Article discusses the results of an ongoing examination of the sources of law and the value of precedent in Louisiana. The examination involves a study of Louisiana legislation, Louisiana courts’ writings about the sources of law and precedent, and a survey of Louisiana judges. Part of the examination included reviewing Louisiana judicial opinions on various issues to determine if there were differences in valuing precedent based on area of law or topic. It also included reviewing judicial opinions from the United States Supreme Court and New York state courts to compare these courts’ approaches to the use of precedent with those of the Louisiana courts. The article is based on a paper presented to the Third Congress of Mixed Jurisdiction Jurists, which was held in Jerusalem, Israel in June 2011, and the author’s prior writings on the subject.

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The Sky Is Not Falling: Why Name, Image, and Likeness Legislation Does Not Violate Title IX and Could Narrow the Publicity Gap Between Men’s Sport and Women’s Sport Athletes

Journal of Legal Aspects of Sport ◽

10.18060/25602 ◽

2021 ◽

Vol 31 (2) ◽

pp. 253-288

Author(s):

Alicia Jessop ◽

Joe Sabin

Keyword(s):

Title Ix ◽

Common Law ◽

United States Supreme Court ◽

The United States ◽

Plain Language ◽

Women's Sport ◽

Right Of Publicity ◽

Ncaa Athletics ◽

Ncaa Athletes ◽

The Right

For decades, the National Collegiate Athletic Association’s (“NCAA”) amateurism rules have largely prevented NCAA athletes from commercializing their names, images, and likenesses (“NIL”). The right to license and profit from one’s own image, often referred to as the “Right of Publicity,” is explicitly recognized by statute or common law in 35 states. No federal Right of Publicity statute exists, but in 1977, the United States Supreme Court recognized the right. However, until 2021, NCAA athletes were precluded from benefiting from this right, as under the NCAA’s amateurism principle, “An individual loses amateur status and thus shall not be eligible for intercollegiate competition in a particular sport ...” if he “[u]ses athletics skill (directly or indirectly) for pay in any form in that sport.” Until July 1, 2021, by becoming an NCAA athlete and complying with the NCAA’s Bylaws to maintain eligibility, NCAA athletes gave up their right to benefit from their NIL while competing in NCAA athletics. This relinquishment put full commercial marketing control of the athlete, their team, and the college sport in the NCAA’s hands. Research shows that despite the application of Title IX to sport in 1975, NCAA women’s sports have not been commercially marketed in parity with NCAA men’s sports, with NCAA men’s sports experiencing significant publicity and sponsorship windfalls. This article examines the recent decision by the NCAA to allow NCAA athletes to benefit from their NIL, the potential Title IX implications of the decision, and how the decision could narrow the publicity gap between NCAA men’s and women’s sport athletes in furtherance of the plain language and intent of Title IX.

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The Jury is Out: The Controversy About Jury Trials Under the Alberta Securities Act

Alberta Law Review ◽

10.29173/alr2603 ◽

2020 ◽

pp. 1025

Author(s):

Robert Stack

Keyword(s):

Law Enforcement ◽

Supreme Court ◽

Jury Trial ◽

Court System ◽

Securities Law ◽

Division Of Powers ◽

Jury Trials ◽

The Supreme Court ◽

The Right ◽

Securities Laws

After reviewing the place of securities law enforcement within the Canadian court system, the author traces the Peers and Aitkens decisions from the Provincial Court to the Supreme Court and outlines how these cases dealt with the question of what penalties trigger the right to a jury trial under section 11(f) of the Charter. The author explains how section 11(f) impacts the division of powers by creating a constitutional cap on the prison sentences that are available for violations of provincial law. In light of stiff maximum penalties for violations of securities laws, the Peers and Aitkens decisions raise the question of whether there are constitutional reasons to continue to try regulatory offences by judge alone in provincially appointed courts.

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THE CONSTITUTIONAL RIGHT TO A JURY TRIAL AND A FAST TRIAL: THE EXPERIENCE OF THE UNITED STATES

Analytical and Comparative Jurisprudence ◽

10.24144/2788-6018.2021.02.2 ◽

2021 ◽

pp. 11-13

Author(s):

V.V. Berch

Keyword(s):

United States ◽

Direct Democracy ◽

The United States ◽

Jury Trial ◽

Professional Activity ◽

The People ◽

Administration Of Justice ◽

Constitutional Right ◽

The Right ◽

Speedy Trial

The article is devoted to the consideration of the constitutional right to a trial by a jury, as well as the right to a speedy trial in accordance with the provisions of the Sixth Amendment to the US Constitution. It is noted that as of today in Ukraine there is a question of ensuring the actual (real) participation of the people in the administration of justice and the creation of an appropriate mechanism for the realization of such a right of the people. It is established that the permanent evolution of the jury trial in the world as a full-fledged element of participatory democracy allows us to assert the possibility of applying the best foreign experience in this area and for Ukraine. It is noted that the jury trial, which is typical for the United States, is undoubtedly a consequence of the borrowing of English legal customs, but has its own special features. It has been established that the right to a speedy trial should be distinguished from other constitutional rights, as it concerns the interests of society and the justice system more than the interests of the accused. The circumstances that suggest whether a trial is in fact "fast" are rather vague, as each such proceeding is to some extent unique. The requirements for members of the jury are set out in the Jury Selection Act. It is noted that the release of jurors varies depending on the state. One of the grounds for such dismissal is professional activity. For example, doctors, lawyers, public figures, police or firefighters. At the same time, this practice is gradually ceasing to be natural. It is concluded that the jury trial as a form of public participation in the administration of justice is undoubtedly a democratic legal institution. Direct democracy in the exercise of judicial power, which is carried out in compliance with the principles of publicity and adversarial proceedings promotes the establishment of citizens' faith in the fairness of judicial decisions.

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The Confrontation Right

The Oxford Handbook of Criminal Process ◽

10.1093/oxfordhb/9780190659837.013.44 ◽

2019 ◽

pp. 864-886

Author(s):

Richard Friedman

Keyword(s):

United States ◽

Common Law ◽

The United States ◽

Current Status ◽

History Of ◽

The Right

This chapter examines the right of criminal defendants to be confronted with the witnesses against them. It first provides an overview of the nature, purposes, and costs of the confrontation right before discussing the history of the confrontation right. It then considers a range of issues that may arise in any jurisdiction (or in some cases, any common law jurisdiction) with regard to the confrontation right, using as a touchstone the current status of the right in the United States. In particular, it describes situations in which the question of whether a statement is testimonial typically arises, such as fresh accusations and forensic laboratory reports. It also explores the waiver and forfeiture of the confrontation right, a child’s testimony, and remote testimony as well as the extent of constitutionally protected impeachment before concluding with an analysis of the confrontation right in Europe.

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Legal Complexity and the Transformation of the Criminal Process: The Origins of Plea Bargaining

Israel Law Review ◽

10.1017/s0021223700015284 ◽

1997 ◽

Vol 31 (1-3) ◽

pp. 183-222 ◽

Cited By ~ 17

Author(s):

Malcolm M. Feeley

Keyword(s):

Standard Form ◽

United States Supreme Court ◽

Plea Bargaining ◽

The United States ◽

Jury Trial ◽

Criminal Cases ◽

Plea Bargain ◽

Jury Trials ◽

Adversary System ◽

Necessary Evil

The standard form of disposition for most English and American criminal cases is the guilty plea, by means of a plea bargain. Jury trials are the rare exception rather than the rule. Although plea bargaining is the subject of a huge scholarly literature analyzing its nature and functioning, there is a much smaller literature on its origins and development. Most of the literature is highly critical, and much of it rests upon a belief that bureaucratic justice has come to replace the vigorous adversarial jury trial. Some critics lament “our vanishing jury”. Others decry the rise of “technocratic justice”. And still others warn that we are witnessing the “twilight of the adversary process”, or the decline of the adversary system. Even those who defend plea bargaining, such as justices on the United States Supreme Court, tend to regard it as a “necessary evil” required as an expedient to cope with the rising tide of caseloads rather than an ideal process.Despite important differences of emphasis among these and still other commentators, most share an important commonalty; they adopt a form of functional analysis that understands plea bargaining as an adaptation to caseload pressures. Hence the power of the metaphor “the twilight” of the adversary process. This assessment seems plausible in light of pervasive plea bargaining and the crush of caseloads in American and English courts.

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The scope of rights of appeal (not recourse) from arbitration awards

10.26686/wgtn.17012636 ◽

2021 ◽

Author(s):

◽

Benjamin Suter

Keyword(s):

United States ◽

United Kingdom ◽

New Zealand ◽

Common Law ◽

Civil Law ◽

The United States ◽

The United Kingdom ◽

Law Courts ◽

Model Law ◽

The Right

<p>This paper examines the scope of rights of appeal from arbitration awards in New Zealand, Singapore, Switzerland, the United Kingdom and the United States. In countries that have drafted their legislation after the UNCITRAL Model Law appeals are often excluded and only recourse based on very narrow grounds is available. While many countries are more permissive with regards to appeals than the Model Law in that they allow the parties to opt for more expansive review, none of the examined jurisdictions give the parties the right to opt for appeals on questions of law and fact. In several cases parties have tried to expand the rights of appeal by agreement. Such agreements are deemed invalid in all jurisdictions. When examining whether the invalid clause renders the entire arbitration agreement invalid, courts in common law jurisdictions have applied the doctrine of severance in some variations. Civil law courts usually examine whether the parties would have concluded the contract without the invalid clause (“but for”-test). This paper suggests that many of these tests are not suitable for arbitration agreements where the parties do not exchange considerations but rather promise one another exactly the same. The preferable approach is to combine the “but for”-test with a test that assesses if severance alters the nature of the agreement.</p>

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Trade Union Recognition and Australia’s Neo-Liberal Voluntary Bargaining Laws

Relations industrielles ◽

10.7202/006779ar ◽

2003 ◽

Vol 57 (2) ◽

pp. 225-251 ◽

Cited By ~ 9

Author(s):

Ron McCallum

Keyword(s):

United States ◽

New Zealand ◽

Trade Union ◽

Trade Unions ◽

Common Law ◽

Industrial Relations ◽

The United States ◽

Recognition Mechanism ◽

The Common ◽

The Right

Summary When Australia deregulated its economy in the 1980s, political pressures built up leading in the 1990s to the dismantling of Australia’s industry-wide conciliation and arbitration systems. New laws established regimes of collective bargaining at the level of the employing undertaking. This article analyzes the 1993 and 1996 federal bargaining laws and argues that they fail to protect the right of trade unions to bargain on behalf of their members. This is because the laws do not contain a statutory trade union recognition mechanism. The recognition mechanisms in the Common Law countries of the United States, Canada, Britain and New Zealand are examined, and it is argued that Australia should enact trade union recognition mechanisms that are consonant with its industrial relations history and practice.

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The Private Investigator and the Right to Privacy

Alberta Law Review ◽

10.29173/alr1635 ◽

1969 ◽

pp. 256 ◽

Cited By ~ 1

Author(s):

Elaine F. Geddes

Keyword(s):

United States ◽

Criminal Law ◽

Common Law ◽

The United States ◽

The Right To Privacy ◽

Private Investigator ◽

The Status ◽

The Common ◽

The Individual ◽

The Right

The author examines the law with respect to the status and powers of private investigators and reviews cases in both Canada and the United States involving the activities of private investigators. Possible remedies available against the private investigator, both in tort and criminal law, are reviewed, as well as American cases on the common law of invasion of privacy, Canadian cases under the various provincial Privacy Acts and possible remedies under the Charter of Rights. Privacy is the right of the individual to decide for himself how much of his life, his thoughts, emotions and the facts that are personal to him he will share with others.

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