Pub Date : 2012-03-22DOI: 10.5195/LAWREVIEW.2012.191
Andrew W. Jurs
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.
{"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}
In this paper we discuss the disparate treatment of perceptual ("fact") witnesses and expert witnesses in the legal system. We highlight the distinction between the perceptual act of witnessing and the act of testifying, and argue that although there might be good reasons to regulate payments to fact witnesses, the customary prohibition on paying them for their services is not justified by reference to economic theory. We propose considering a court mediated system for compensating fact witnesses so as to encourage witnessing of legally important events.We construct a simple model of witness incentives, and simulate the effects of several possible payment mechanisms. Although it is possible that any system that offers a financial incentive will induce some unreliable witness testimony, we argue that the current system also provides incentives for biased testimony, so it is not clear that a payment system would lower the quality of witness testimony.
{"title":"An Economic Analysis of Fact Witness Payment","authors":"E. Kontorovich, E. Friedman","doi":"10.1093/JLA/3.1.139","DOIUrl":"https://doi.org/10.1093/JLA/3.1.139","url":null,"abstract":"In this paper we discuss the disparate treatment of perceptual (\"fact\") witnesses and expert witnesses in the legal system. We highlight the distinction between the perceptual act of witnessing and the act of testifying, and argue that although there might be good reasons to regulate payments to fact witnesses, the customary prohibition on paying them for their services is not justified by reference to economic theory. We propose considering a court mediated system for compensating fact witnesses so as to encourage witnessing of legally important events.We construct a simple model of witness incentives, and simulate the effects of several possible payment mechanisms. Although it is possible that any system that offers a financial incentive will induce some unreliable witness testimony, we argue that the current system also provides incentives for biased testimony, so it is not clear that a payment system would lower the quality of witness testimony.","PeriodicalId":228651,"journal":{"name":"Evidence & Evidentiary Procedure eJournal","volume":"6 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-05-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128252223","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}
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.
尽管美国最高法院在1958年首次考虑了美国证据披露规则与外国不披露法之间的冲突，但关于如何对外国注册公司执行美国法律的明确标准尚未出现。2006年《美国联邦民事诉讼规则》关于电子证据开示(“电子证据开示”)程序的修正案的结果是，“越来越多拥有全球业务的公司发现自己陷入了电子证据开示的困境，这需要从全球的角度对问题和法律有更深入的了解。”因为“当你的母公司位于海外，或者总部位于美国的公司在海外设有子公司时，驾驭和管理电子发现是一项挑战。”鉴于2006年的修订，以及关于2006年修订的影响缺乏判例法，本文着眼于执法技巧是否适用于“纸”?电子证据开示应适用于电子证据开示，以及电子证据开示的性质是否有任何特定的东西需要改变法律的适用。具体来说，本文讨论了欧洲数据隐私制度如何影响电子证据发现强制执行技术的应用。这篇论文表明，美国法院对欧洲数据隐私制度给予重大尊重是不明智的。相反，应该对欧洲的数据隐私制度持怀疑态度，就像美国法院看待“封锁法规”一样。包含在外国法律中的特别是，以怀疑的态度对待欧盟数据隐私制度，将有助于防止企业将数据存储在国外，希望通过提高此类行为的交易成本，避免根据《联邦民事诉讼规则》(Federal Rules of Civil Procedure)提出的合法取证要求。
{"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}
This paper examines the affect of Daubert v. Merrell Dow Pharms and related gatekeeping decisions on expert testimony since January 2000, focusing primarily on economic testimony in antitrust cases. An analysis of gatekeeping motions on economic testimony taken from two data sets that attempt to track these motions suggests that the courts’ gatekeeping may have created additional barriers to plaintiff antitrust cases, and so may discourage well-qualified economists from taking these cases. These data show that economists appear to be most frequently challenged when providing economic opinions on behalf of the plaintiff in antitrust cases, while defense experts are often unchallenged. Moreover, plaintiff exclusions are much higher than defense expert exclusions. These results suggest further research should be done to test the reliability of the data, determine the causes of the apparent imbalance, and see what actions -- if any -- should be taken to address any imbalance.
{"title":"Daubert and Other Gatekeeping Challenges of Antitrust Economists","authors":"J. Langenfeld, Christopher Alexander","doi":"10.2139/ssrn.1337081","DOIUrl":"https://doi.org/10.2139/ssrn.1337081","url":null,"abstract":"This paper examines the affect of Daubert v. Merrell Dow Pharms and related gatekeeping decisions on expert testimony since January 2000, focusing primarily on economic testimony in antitrust cases. An analysis of gatekeeping motions on economic testimony taken from two data sets that attempt to track these motions suggests that the courts’ gatekeeping may have created additional barriers to plaintiff antitrust cases, and so may discourage well-qualified economists from taking these cases. These data show that economists appear to be most frequently challenged when providing economic opinions on behalf of the plaintiff in antitrust cases, while defense experts are often unchallenged. Moreover, plaintiff exclusions are much higher than defense expert exclusions. These results suggest further research should be done to test the reliability of the data, determine the causes of the apparent imbalance, and see what actions -- if any -- should be taken to address any imbalance.","PeriodicalId":228651,"journal":{"name":"Evidence & Evidentiary Procedure eJournal","volume":"10 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128725822","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}
Pub Date : 2009-09-01DOI: 10.4135/9781526415806.n6
Gideon Parchomovsky, Alex Stein
In this Essay we introduce a model of copyright law that calibrates authors' rights and liabilities to the level of originality in their works. We advocate this model as a substitute for the extant regime that unjustly and inefficiently grants equal protection to all works satisfying the "modicum of creativity" standard. Under our model, highly original works will receive enhanced protection and their authors will also be sheltered from suits by owners of preexisting works. Conversely, authors of less original works will receive diminished protection and incur greater exposure to copyright liability. We operationalize this proposal by designing separate rules for highly original works, for works exhibiting average originality, and for works that are minimally original or unoriginal. We illustrate our rules' application by showing how they could have altered court decisions in classic copyright cases in a socially beneficial way.
{"title":"Originality","authors":"Gideon Parchomovsky, Alex Stein","doi":"10.4135/9781526415806.n6","DOIUrl":"https://doi.org/10.4135/9781526415806.n6","url":null,"abstract":"In this Essay we introduce a model of copyright law that calibrates authors' rights and liabilities to the level of originality in their works. We advocate this model as a substitute for the extant regime that unjustly and inefficiently grants equal protection to all works satisfying the \"modicum of creativity\" standard. Under our model, highly original works will receive enhanced protection and their authors will also be sheltered from suits by owners of preexisting works. Conversely, authors of less original works will receive diminished protection and incur greater exposure to copyright liability. We operationalize this proposal by designing separate rules for highly original works, for works exhibiting average originality, and for works that are minimally original or unoriginal. We illustrate our rules' application by showing how they could have altered court decisions in classic copyright cases in a socially beneficial way.","PeriodicalId":228651,"journal":{"name":"Evidence & Evidentiary Procedure eJournal","volume":"23 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127370167","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}
This article discusses evidentiary issues in the New York City Civil Court, Housing Part
本文探讨了纽约市民事法院住房部分的证据问题
{"title":"Evidentiary Issues in Housing Court","authors":"J. Marter, Gerald Lebovits","doi":"10.2139/SSRN.1441504","DOIUrl":"https://doi.org/10.2139/SSRN.1441504","url":null,"abstract":"This article discusses evidentiary issues in the New York City Civil Court, Housing Part","PeriodicalId":228651,"journal":{"name":"Evidence & Evidentiary Procedure eJournal","volume":"8 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-07-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117029603","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}
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.
{"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}
Pub Date : 2008-04-17DOI: 10.1111/j.1468-2230.2008.00696.x
Andrew D. Roberts
This paper sets out the normative basis of a claim to procedural rights concerning the fair use of eyewitness identification procedures. It is argued that there are two aspects to suspects' procedural rights. The first aims to secure an opportunity for the suspect to participate in procedures where doing so might result in exculpatory evidence (a participatory right). The second is the state's obligation to take reasonable measures to prevent wrongful conviction on the basis of mistaken identification by providing the suspect with a satisfactory degree of procedural accuracy (a protective right). This normative analysis provides the basis of a claim that Article 6 of the European Convention on Human Rights provides a suspect with similar rights. The final part of the paper considers whether domestic procedure is compatible with these putative rights, and whether it could be said to provide an effective remedy if they were to be breached.
{"title":"Pre-Trial Defence Rights and the Fair Use of Eyewitness Identification Procedures","authors":"Andrew D. Roberts","doi":"10.1111/j.1468-2230.2008.00696.x","DOIUrl":"https://doi.org/10.1111/j.1468-2230.2008.00696.x","url":null,"abstract":"This paper sets out the normative basis of a claim to procedural rights concerning the fair use of eyewitness identification procedures. It is argued that there are two aspects to suspects' procedural rights. The first aims to secure an opportunity for the suspect to participate in procedures where doing so might result in exculpatory evidence (a participatory right). The second is the state's obligation to take reasonable measures to prevent wrongful conviction on the basis of mistaken identification by providing the suspect with a satisfactory degree of procedural accuracy (a protective right). This normative analysis provides the basis of a claim that Article 6 of the European Convention on Human Rights provides a suspect with similar rights. The final part of the paper considers whether domestic procedure is compatible with these putative rights, and whether it could be said to provide an effective remedy if they were to be breached.","PeriodicalId":228651,"journal":{"name":"Evidence & Evidentiary Procedure eJournal","volume":"3 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2008-04-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116473710","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}
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.
{"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}
We analyze the design of legal principles and procedures for court decision-making in civil litigation. The objective is the provision of appropriate incentives for potential tort-feasors to exert care, when evidence about care is imperfect and may be distorted by the parties. Efficiency is shown to be consistent with courts adjudicating on the basis of the preponderance of evidence standard of proof together with common law exclusionary rules. Inefficient equilibria may nevertheless also arise under these rules. Directing courts as to the assignment of the burden of proof is then useful as a coordination device. Alternatively, burden of proof guidelines are unnecessary if courts are allowed a more active or inquisitorial role, by contrast with that of passive adjudicator.
{"title":"Rules of Proof, Courts, and Incentives","authors":"D. Demougin, Claude Fluet","doi":"10.2139/SSRN.936399","DOIUrl":"https://doi.org/10.2139/SSRN.936399","url":null,"abstract":"We analyze the design of legal principles and procedures for court decision-making in civil litigation. The objective is the provision of appropriate incentives for potential tort-feasors to exert care, when evidence about care is imperfect and may be distorted by the parties. Efficiency is shown to be consistent with courts adjudicating on the basis of the preponderance of evidence standard of proof together with common law exclusionary rules. Inefficient equilibria may nevertheless also arise under these rules. Directing courts as to the assignment of the burden of proof is then useful as a coordination device. Alternatively, burden of proof guidelines are unnecessary if courts are allowed a more active or inquisitorial role, by contrast with that of passive adjudicator.","PeriodicalId":228651,"journal":{"name":"Evidence & Evidentiary Procedure eJournal","volume":"9 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2008-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125431605","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}
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