Hazard on What CAFA Says About the Relation Between Federal and State Law

Geoff Hazard has published an article titled, Has the Erie Doctrine Been Repealed By Congress?, 156 U. Pa. L. Rev. 1629 (2008). Geoff says that the Class Action Fairness Act of 2005 implies that the Erie doctrine is "seriously erroneous." Viewed in broader relief, however, "CAFA can be understood as one more of a long series of congressional enactments that provide federal civil justice to various categories of litigants," he states. "In this light CAFA is hardly revolutionary, and its enactment might invite reconsideration of various applications of [Erie]."

Marcus on the Stated Purposes of CAFA

Rick Marcus has published an article scrutinizing the stated purposes for the Class Action Fairness Act of 2005 titled, Assessing CAFA's Stated Jurisdictional Policy, 156 U. Pa. L. Rev. 1765 (2008). Rick acknowledges the unarticulated, non-neutral political motivations for expanding federal jurisdiction over class actions. But "[f]avoring use of federal procedures for class actions makes sense, as does favoring expansion of federal court jurisdiction to cure problems created by overlapping class actions," and those are CAFA's two stated rationales. Rick concludes that, despite all the incendiary rhetoric about CAFA, its enduring effect is yet to be determined.

Little on the Evidentiary Sources of Wrongful Convictions

Rory Little has posted to SSRN an article called, "Addressing the Evidentiary Sources of Wrongful Convictions: Categorical Exclusion of Evidence in Capital Statutes," which will be published in Vol. 37 of the Southwestern Law Review. Here is the abstract:

After two decades of powerful "wrongful conviction" cases stimulated by new DNA science, we can now categorize the sources of error across dozens if not hundreds of exonerations. (The author, a former prosecutor, is neither a death penalty abolitionist nor a disbeliever of convictions - many convictions are "very right indeed" (n.2). Nevertheless, at least four of the known sources of wrongful conviction fall into categories we can define and, perhaps, do something about: (1) eyewitness misidentifications, (2) false confessions, (3) "jailhouse snitches" (or more broadly, criminal informants), and (4) "junk" (i.e., unvalidated) science. Yet we do not simply ban these categories of evidence from criminal cases. Instead, we propose only procedural screens, which if successfully navigated, still allow some instances of the questioned types of evidence to be admitted. But in cases with wrenching facts, emotion may overwhelm "screens" such as jury instructions or expert testimony designed to narrow the jury's consideration of questionable evidence. In an effort to stimulate meaningful remedial thinking, this essay proposes instead a "categorical" exclusion solution for capital cases. (The essay quickly sidesteps the more difficult question: why limit the categorical exclusion to just capital cases?) No capital prosecution may be filed or prosecuted if based primarily on one of the four listed sources of evidence, whether singly or in combination. This statutory proposal would be immediately judicially enforceable and reviewable. A model statute is appended, so that critics (or advocates) can shoot at (or improve) the idea with specifics. The essay concludes by briefly considering nine objections that might be raised to the proposal. The essay points out that we do "categorically" ban probative evidence in at least two other contexts: the Treason Clause of the Constitution; and polygraph evidence. (Interestingly, Ben Franklin was reported by James Madison to favor the Treason Clause, which blocks the prosecution of treason cases unless the evidence is especially powerful, because the evidence was "too easily made use of against innocence." Thus the concern to guard against prosecution of the "actually innocent" is hardly new.) The essay also provides (in a footnote, of course) some "forgotten" history about "Actual Innocence" literature in the United States: The debate can be traced back to a 1912 dialogue between the wardens of the American Prison Congress and then-Librarian of Congress Edwin Borchard, which culminated some decades later in Borchard's well-known 1932 book "Convicting the Innocent."