JURY EVALUATION OF EXPERT TESTIMONY UNDER THE FEDERAL RULES
In this article, I present a practical critique of the civil jury system, specifically the theory and practice. I propose to diagnose inherent problems in the expert witness Rules 702–705 of the Federal Rules of Evidence. This article will address the unintended and unanticipated consequences of the expert witness revolution brought about by the Federal Rules of Evidence.
OF SURGICAL SPONGES AND FLOUR BARRELS, AND WHY MEDICAL EXPERTS ARE NEEDED EVEN WITH A RES IPSA LOQUITUR INSTRUCTION
Lady Justice, with her blindfold and gilded scales, is the image is evoked to illustrate the standard used in civil trials: the plaintiff must prove his or her case by a preponderance of the evidence, equating “preponderance” with a greater than 50% chance of the plaintiff’s claims being true. The legal doctrine res ipsa loquitur employs a similar metric when it comes to allowing an event that does not ordinarily occur in the absence of negligence to serve as circumstantial evidence of the plaintiff’s claim. This article describes the current application of res ipsa in Pennsylvania, focusing particularly on medical malpractice cases.
FISHING SEASON IS OVER: AFTER BARRICK AND AMENDED PENNSYLVANIA RULE OF CIVIL PROCEDURE 4003.5, PENNSYLVANIA REACHED THE RIGHT DECISION REGARDING WORK PRODUCT PROTECTIONS BETWEEN ATTORNEYS AND EXPERTS
The long-standing tension in Pennsylvania inherent in the competing policies promoting the truth-determining process and protecting attorney work product from discovery has finally reached resolution with regard to expert communications. Pennsylvania has turned back the clock to protecting the disclosure of attorney-expert communications by creating a bright-line rule prohibiting disclosure of those communications under Barrick v. Holy Spirit Hospital and the subsequent Pennsylvania Rule of Civil Procedure 4003.5. The new Pennsylvania rule is much more protective of attorney-expert communications, and aligns itself with both the recent amendments to the Federal Rules and many states, including Pennsylvania’s sister state, New Jersey. Although the expert discovery fishing expedition is now over, the rule does not create a complete bar to questioning experts about some of their interactions with attorneys for impeachment purposes. Proper cross-examination is still available even with the new protections under Barrick and Pennsylvania Rule of Civil Procedure 4003.5.
AN UNOBEYABLE LAW IS NOT A LAW: LON FULLER’S “DESIDERATA” RECONSIDERED
In this Article, I discuss the question of Lon L. Fuller’s proper placement within the outline of legal theory, particularly the extent to which he can be viewed as defending a kind of natural law tradition. In considering this question, I advance three closely related claims about Fuller’s conception of the rule of law. First, I claim that his eight “desiderata” are formal features of a legal system, and I rebut a recent argument by Professor John Gardner, who suggests that modality, rather than formality, better describes the rule of law. Second, I claim that the formal desiderata can be viewed as both inclusion conditions by which, per Fuller, law can be identified, and as standards by which law so identified may be judged. In other words, the rule of law for Fuller is not merely a set of standards but is also part of his concept of law in that a certain threshold compliance with the rule of law is necessary for a form of social ordering to qualify as law at all. I answer Hart’s “instrumentalist” attack on Fuller, claiming that, though law may be “compatible with very great iniquity,” as Hart asserts, there are particular iniquities law tends to cabin and subdue. Finally, I argue that the eight desiderata can plausibly be subsumed under the heading of Fuller’s sixth desideratum, that law not be impossible to obey. The latter desideratum deserves pride of place because it underscores what is central to Fuller’s concept of law more generally, namely, the inherent assumption of and respect for what Professor Kristen Rundle has recently described as the dignity and responsible human agency of those subject to law. I conclude that Fuller differs from natural law theorists insofar as his formal concept of rule-of-law-compliant law is largely indifferent to the justness of law’s substantive aims but that, contra positivism, Fuller views law as a system of social ordering in which certain moral choices have already been made—choices reflected in the tendency of the desiderata to promote justice and respect for the citizen subject to law.
THE RIGHT TO BE FORGOTTEN: ISSUING A VOLUNTARY RECALL
Europe has recognized a fundamental right to be forgotten. The contours of this right will doubtlessly evolve, but for the moment Europe recognizes a personal right to ask internet search engine owners to remove links to third party web pages that appear following searches using one’s name in the search query. The argument below will rely on a pragmatic sense of the inevitable basic problems in implementing such a right.