Monday, August 25, 2008

Katyal on Property

Sonia Katyal has posted to SSRN an article (co-authored by Kristen Carpenter and Angela Riley) called "In Defense of Property." Here's the link: The article has been accepted for publication in the Yale Law Journal.

Although Sonia is not on the Hastings faculty, she did substantial work on this article while a Traynor visiting professor over the summer!

Monday, August 18, 2008

Marcus on Dispersion and Consolidation of Litigation

Rick Marcus has published an article entitled, Cure-All for an Era of Dispersed Litigation? Toward a Maximalist Use of the Multidistrict Litigation Panel's Transfer Power, 82 Tulane L. Rev. 2245 (2008) (symposium on multidistrict litigation)(available from HeinOnline). Here is the abstract:

Since World War II, the American economy has coalesced so that mass production and distribution account for a much larger proportion of the goods and services Americans receive. During the same period, various legal theories -- particularly products liability and consumer rights -- have broadened the grounds on which producers of goods or services could be sued. Together, these developments have led to increasingly frequent dispersed litigation. During the same period, the Judicial Panel on Multidistrict Litigation has repeatedly used its transfer authority to combine dispersed cases raising common issues, often leading to combined resolutions or settlements of such litigation. This Article reviews the evolution and orientation of the Panel's consolidation activities against the background of modern procedure's preference for expansive combination of related claims and break from traditional procedure's "minimalist" attitude toward litigation combination. It explores the extent to which the Panel has adopted a "maximalist" attitude toward such combination and identifies some prudential concerns about pushing further toward a maximalist attitude.

Weithorn on the Problems of Applying Atkins v. Virginia

Lois Weithorn has published an article identifying some of the conceptual challenges in applying the U.S. Supreme Court's 2002 decision in Atkins v. Virginia, which held that execution of the mentally retarded violates the Cruel and Unusual Punishments clause of the Eighth Amendment. Lois concludes that "for some defendants -- particularly those viewed as 'mildly mentally retarded' -- summary scores on traditional measures of intellectual and adaptive functioning will not constitute the most meaningful and relevant evidence of intellectual disability for the purpose of death-penalty exclusion." She argues that, "given the limitations of existing measurement instruments . . . state policies should err on the side of casting a net that is too wide rather than one that is too narrow in defining 'mental retardation' for the purpose of Atkins compliance." The article is at 59 Hastings L. J. 1203 (2008) (symposium on forensic science).

Monday, August 11, 2008

Leib Guest Blogging with New York Times

Ethan Leib is guest-writing for the New York Times "Freakonomics Blog" this week. Here is the link to his first post, regarding California's use of his work on friendship and the law:

Wednesday, August 6, 2008

Park on Signature Identification Evidence

Roger Park has published an article called "Signature Identification in the Light of Science and Experience," 59 Hastings L. J. 1101 (symposium on scientific evidence). Roger carefully analyzes the empirical studies on signature identification and concludes that expert witnesses on forensic document examination should be permitted to testify in signature authentication cases. However, he strongly advocates numerous safeguards, including "instructions that the expertise is not scientific, restrictions on the use of scientific jargon or science-invoking words such as 'laboratory,' and full discovery of detailed conclusions." Furthermore, Roger argues that, when such forensic document experts testify, witnesses with knowledge of the scientific method should be allowed to testify on the other side, questioning scientific status, proficiency, or the validity of conclusions.