The Daubert standard, a primer for pain specialists.

David L. Faigman's Policy Forum “Is science different for lawyers?” (19 July, p. 339) gives the impression that Daubert, the complex 1993 U.S. Supreme Court decision about science in the courtroom, is “the” standard for admissibility of scientific evidence in U.S. courts. It is not; a substantial number of courts favor an arguably simpler approach to the admission of scientific evidence (1). The courts of 17 states continue to apply the Frye “general acceptance” test from a 1923 ruling by a federal court (2). That court excluded expert testimony about a “blood pressure deception test” with a simplicity that contrasts to the multistep process of Daubert—admissible scientific evidence must be based on a “well-recognized scientific principle or discovery [that is] sufficiently established to have gained general acceptance in the particular field to which it belongs” (2).

Restraining Multiple Bites at the Class Certification Apple: May a Federal Court Enjoin a State Court from Relitigating a Class Certification Denial?

Indirect Purchaser Suits after the Class Action Fairness Act

Federal courts are reluctant to review the work of state and local administrative agencies. Despite the presence of diversity or federal question jurisdiction to challenge final agency action, federal courts have sometimes abstained from exercising their jurisdiction out of fear of disrupting a complex regulatory scheme and displacing state courts in the uniform development of state regulatory policy. At other times, federal courts have treated review of state administrative action as appellate in nature and therefore beyond the jurisdiction of the federal district courts, especially when review of agency action would be deferential under state law. And at still other times, federal courts have invoked preclusion principles to bar federal challenges to agency action that was judicial in nature. While recent decisions of the Supreme Court may have moved away from imposing a jurisdictional bar, the American Law Institute proposes to revive such a limit, arguing that such review of agency action is contrary to the historic role of the federal courts and would alter their essential function as courts of original jurisdiction. In this Article, the authors challenge these various practices preventing review of nonfederal administrative action, and they question the rationales behind them. They argue that, as a historical matter, federal courts once engaged in a robust review of state administrative action, even as to issues of state law. In addition, they suggest that concern for federal court interference with uniformity of state policymaking has been overstated, while traditional concerns of federal jurisdictional policy in providing a neutral forum for out of staters as well as those raising federal challenges to state and local action, have been slighted. They also attack the characterization of judicial review of administrative action as appellate, and suggest why it is both descriptively accurate and normatively desirable to see judicial review as an original proceeding distinct from agency action. And in many cases, they observe, according state agency decisionmaking the same level of deference that it would obtain in a state court would serve as a better measure of the respect owed such decisionmaking than formal preclusion. Although the Article takes the position that federal courts should not shy from entertaining diversity-based challenges to state administrative decisionmaking, or even most challenges grounded in federal law, it concludes that, absent diversity, due process reasonableness challenges to agency action should ordinarily be relegated to state courts.

Disputed confession evidence is frequently the focus of both expert psychological testimony and psychological research. In United States v. Vallejo, relying on the Federal Rules of Evidence, the Ninth Circuit Court reversed the trial conviction in a drug importation case citing, among other things, the judge's exclusion of expert psychological testimony regarding the defendant's language deficits as revealed in his special education history. The Appellate Court ruled that this testimony was relevant to the dispute regarding the confession evidence and related to criminal intent in the alleged offense. This article discusses the Vallejo case in the context of research on competency to confess, the reliability of confession evidence and the relevance of language factors in the assessment of confession evidence. Contrary to the law enforcement allegation, Vallejo asserted that he did not confess at all.

This paper examines the legal and scientific aspects of expert psychological testimony in the United States and discusses the possible implications for such testimony of a recent decision by the United States Supreme Court. We consider expert testimony on eyewitness identification issues as an illustration of the reaction of the courts to, particularly, novel scientific evidence offered in adversarial settings. First, an historical perspective on the use of expert testimony is traced with particular attention to the criteria that state and federal courts have used in determining whether to admit expert testimony. We then examine the new Supreme Court decision and discuss its implications for the use of expert eyewitness testimony. We conclude by illustrating how eyewitness research and research on jury decisionmaking is likely to assume new importance in light of new expert evidence criteria.

The recent Supreme Court decision Jaffee v. Redmond (1996) recognized a psychotherapist-patient privilege in federal court. The background of privileged communication laws in general, the federal privileged communications rules in particular, the facts behind Jaffee v. Redmond, and the final court ruling are reviewed. The impact of the decision and possible future directions for the psychotherapistpatient privilege in federal and state courts also are discussed. The recent Supreme Court decision Jaffee v. Redmond ( 996) established that the communications between psychotherapists and patients are privileged in federal courts under certain circumstances. In this article we describe the general provisions of privilege communications law, the Jaffee v. Redmond case, the likely future directions for the psychotherapist-patient privilege in federal courts, and the potential effects this decision may have on state courts. In explaining the impact of the decision, we review the rationale for privileged communication laws in general and the background on federal privileged communication laws in particular.

Voir Dire in Massachusetts State and Federal Courts: Commentary and Suggestions for Revision

ongressional "court stripping," or the attempt to take jurisdiction away from courts to review matters of all types, is not new. Jurisdiction-stripping proposals were advanced in Congress as early as 1830. Between 1953 and 1968, over sixty bills were introduced into Congress to restrict federal court jurisdiction over particular topics. The 1970s and 1980s saw efforts to strip the courts of jurisdiction in busing, abortion, and school-prayer cases. Sen. Jesse Helms once proposed a bill to strip the federal courts of jurisdiction to review school-prayer cases. Barry Goldwater, upon learning of the Helms bill, dismissed the proposal as the equivalent of "outlawing the Supreme Court." Congress has for years attempted to strip courts of their jurisdiction to review actions of federal law-enforcement agencies and state courts in order to reverse deci sions they do not like, punish judges, or even avoid future rulings they may not like. Federal courts, which have been essential in expanding and preserving individual rights, are now being barraged by congressional attempts to strip the courts of their power to review. Congress's decisions about the courts' jurisdiction, including appellate jurisdic tion, have considerable effects on their caseloads, although not always in ways that might have been anticipated. Nowhere has this trend been more apparent than in Congress's legislation in the immigration area. With the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), a Republican Congress and the Clinton administration fundamentally altered judicial review of immigration matters. Despite this legislation restricting judicial review, the caseload at the U.S. Court of Appeals has risen markedly, so much so that immigra tion cases now comprise 18 percent of the federal appellate civil docket. The legislation. The Supreme Court has suggested that "protecting the Executive's discretion from the courts. . . . can fairly be said to be the theme of the legislation." Reno v. Arab-American Anti-Discrimination Comm., 525 U.S. 471, 486 (1997). The AEDPA eliminated judicial review for criminal aliens. It stated that "Notwithstanding any other provision of law, no court shall have jurisdiction to review any final order of removal against any alien who is removable by reason of hav ing committed a criminal offense." In addition, the act deleted the prior provision in federal law that permitted habeas corpus review of claims by aliens who were held in custody pursuant to deportation orders. The IIRIRA was an attempt by Congress to eliminate judicial review of non final orders or rulings primarily involving aliens in removal proceedings. It also con

Fraudulent Joinder, Federalism, and the Twombly/Iqbal Problem

A Statute Overtaken by Time: The Need to Re-Interpret Federal Rule of Evidence 803(8)(a)(iii) Governing the Admissibility of Expert Opinions in Government Investigative Reports

This is the Twenty-Seventh Annual Survey of American choice-of-law cases. It is written at the request of the Association of American Law Schools Section on Conflict of Laws and is intended as a service to fellow teachers of conflicts law, both in and outside the United States. Its purpose remains the same as it has been from the beginning: to inform, rather than to advocate. This Survey covers cases decided by American state and federal appellate courts from January 1 to December 31, 2013, and posted on Westlaw by January 15, 2014. Of the 1,356 cases that meet these parameters, the Survey focuses on those cases that may contribute something new to the development or understanding of conflicts law — and, particularly, choice of law.This Survey is longer than the Surveys of any of the previous 26 years because 2013 produced more, and more noteworthy, cases than any of the previous years. The following are some of the highlights: (1) Five decisions of the U.S. Supreme Court holding, respectively, that: (a) The Alien Tort Statute does not apply to conduct and injury occurring entirely in another country; (b) Section 3 of the Defense of Marriage Act (DOMA), which defines “marriage” for federal law purposes so as to exclude same-sex relationships, is unconstitutional; (c) The Federal Arbitration Act trumps the provisions of the Sherman Antitrust Act; (d) The “first sale” doctrine as codified in the Copyright Act applies to copies of copyrighted works lawfully made abroad and first sold abroad; and (e) The National Voter Registration Act preempts an Arizona law that sets more stringent standards for proof of citizenship when registering to vote; (2) A sixth Supreme Court decision explaining the methodology that federal courts should use when evaluating venue challenges in cases involving choice-of-forum clauses; (3) Two federal appellate decisions involving piracy off the Somali coast, and several decisions involving the extraterritorial reach of federal statutes in civil and criminal cases; (4) Several state court decisions striving to protect consumers, employees, and other weak parties through the few cracks left by the Supreme Court’s decisions on arbitration and choice-of-forum clauses; (5) An assortment of interesting cases involving products liability, other cross-border torts, economic torts, and other tort conflicts; (6) A case holding that enforcement of a Japanese tort judgment against a California Church is not “state action” triggering constitutional scrutiny under the Constitution’s Free Exercise clause, and that the judgment is not repugnant to public policy; (7) A case holding that one state’s dismissal of an action on statute of limitation grounds is a dismissal “on the merits,” barring a second action on the same claim in another state; and(8) A case defining “habitual residence” and “wrongful” removal or retention of a child under the Hague Convention on Child Abduction.

This is the Twenty-Seventh Annual Survey of American choice-of-law cases. It is written at the request of the Association of American Law Schools Section on Conflict of Laws and is intended as a service to fellow teachers of conflicts law, both in and outside the United States. Its purpose remains the same as it has been from the beginning: to inform, rather than to advocate. This Survey covers cases decided by American state and federal appellate courts from January 1 to December 31, 2013, and posted on Westlaw by January 15, 2014. Of the 1,356 cases that meet these parameters, the Survey focuses on those cases that may contribute something new to the development or understanding of conflicts law — and, particularly, choice of law.This Survey is longer than the Surveys of any of the previous 26 years because 2013 produced more, and more noteworthy, cases than any of the previous years. The following are some of the highlights: (1) Five decisions of the U.S. Supreme Court holding, respectively, that: (a) The Alien Tort Statute does not apply to conduct and injury occurring entirely in another country; (b) Section 3 of the Defense of Marriage Act (DOMA), which defines “marriage” for federal law purposes so as to exclude same-sex relationships, is unconstitutional; (c) The Federal Arbitration Act trumps the provisions of the Sherman Antitrust Act; (d) The “first sale” doctrine as codified in the Copyright Act applies to copies of copyrighted works lawfully made abroad and first sold abroad; and (e) The National Voter Registration Act preempts an Arizona law that sets more stringent standards for proof of citizenship when registering to vote; (2) A sixth Supreme Court decision explaining the methodology that federal courts should use when evaluating venue challenges in cases involving choice-of-forum clauses; (3) Two federal appellate decisions involving piracy off the Somali coast, and several decisions involving the extraterritorial reach of federal statutes in civil and criminal cases; (4) Several state court decisions striving to protect consumers, employees, and other weak parties through the few cracks left by the Supreme Court’s decisions on arbitration and choice-of-forum clauses; (5) An assortment of interesting cases involving products liability, other cross-border torts, economic torts, and other tort conflicts; (6) A case holding that enforcement of a Japanese tort judgment against a California Church is not “state action” triggering constitutional scrutiny under the Constitution’s Free Exercise clause, and that the judgment is not repugnant to public policy; (7) A case holding that one state’s dismissal of an action on statute of limitation grounds is a dismissal “on the merits,” barring a second action on the same claim in another state; and(8) A case defining “habitual residence” and “wrongful” removal or retention of a child under the Hague Convention on Child Abduction.

Spokeo: The Quasi-Hohfeldian Plaintiff and the Non-Federal Federal Question

Getting off the Dole: Why the Court Should Abandon its Spending Doctrine, and How a Too-clever Congress Could Provoke it to do So