Federal Rules Research Articles

An Aggregation Theory of Character Evidence

Courts frequently depart from Federal Rule of Evidence 404, which prohibits evidence of a person’s prior acts to prove that the person acted according to a certain character or propensity. This leads to verdicts that are unpredictable and based on behavior not at issue in a case. I develop a theory of “aggregation evidence,” which draws on principles of estimation and data aggregation in statistics and ties together evidence from a broad range of contexts. I apply this theory to analyze the effects of character evidence on accuracy, and to understand why and when courts depart from the rule against character evidence. I show that a type of character evidence that I call “objective-chance evidence” stands apart from other forms of character evidence in its ability to improve accuracy. I then argue that a formal exception for this type of evidence may hold the key to a more coherent rule. An earlier version of this article can be found at the following address on the author page at: https://ssrn.com/abstract=3664837.

Data Collection Practices of Mobile Applications Played by Preschool-Aged Children

Child-directed mobile applications (apps) have been found to collect digital identifiers and transmit them to third-party companies, a potential violation of federal privacy rules. This study seeks to examine the differences in app data collection and sharing practices by evaluating the sociodemographic characteristics of the children who play them. To examine data collection and sharing practices of 451 apps played by young children and to test associations with child sociodemographic characteristics. This study used data from the baseline phase of the Preschooler Tablet Study, a prospective cohort study conducted from August 2018 to January 2020. This study used a population-based sample. A convenience sample of the parents of preschool-aged children was recruited from pediatric offices, childcare centers, social media posts, and an online participant registry. Eligibility criteria included (1) parent or guardian of a child aged 3 to 5 years, (2) parent or guardian who lived with the child at least 5 days per week, (3) participants who spoke English, and (4) a child who used an Android (Google LLC) device. All interactions with participants were through email, online surveys, and mobile device sampling. Sociodemographic characteristics were assessed by parental report. This study tested the hypothesis that data transmissions to third-party domains are more common in apps played by children from low-socioeconomic-status homes. Child app usage was assessed via a mobile sampling app for an average of 9 days. Persistent identifier data transmissions to third-party domains were quantified for each app using an instrumented Android environment with monitoring of network traffic; for each child, the counts of total data transmissions were calculated, and the total third-party domains were detected for the apps they played. Our sample comprised 124 children who used Android devices (35 tablets, 89 smartphones; 65 girls [52%]; mean [SD] age, 3.85 [0.57] years; 87 non-Hispanic White [71%]). One hundred twenty of participating parents (97%) were women. Of 451 apps tested, 303 (67%) transmitted persistent identifiers to 1 to 33 third-party domains. Child data transmission counts ranged from 0 to 614 (median [interquartile range], 5.0 [1-17.5]) and third-party domain counts from 0 to 399 (4.0 [1-12.5]). In multivariable negative binomial regression models, higher transmission and third-party domain rates per app were positively associated with older age (rate ratio, 1.67 [95% CI, 1.20-2.33]; P = .002 and 1.69 [95% CI, 1.26-2.27]; P < .001, respectively) and lower parent educational attainment (eg, high school or General Educational Development or less rate ratio, 2.29 [95% CI, 1.20-4.39]; P = .003 and 2.05 [95% CI, 1.13-3.70]; P < .02, respectively), but not with household income. This study found that apps used by young children had a high frequency of persistent identifier transmissions to third-party companies, suggesting that federal privacy rules are not being enforced. Older children, those with their own devices, or those from lower-education households may be at higher risk of potential privacy violations.

Immigrant Health and Changes to the Public-Charge Rule: Family Physicians' Response.

As the US federal government pursues immigration reform, changes to the federal public-charge rule have triggered confusion and concerns among patients who are immigrants. Although federal judges temporarily blocked implementation, a decision by the Supreme Court in January 2020 allowed the proposed changes to take effect. These policy changes have resulted in many legal immigrants and their family members becoming more reluctant to apply for health insurance, food, housing, and other benefits for which they are qualified. This article summarizes the changes and exclusions. Family physicians can effectively respond to patient and immigrant community concerns about these changes by providing outreach education, access to primary health care, and referrals to legal and social services.

State territorialization at the margins: Property formalization and paperwork in the Ethiopian Somali frontier

This paper scrutinizes property formalization as an integral part of state territorialization and demonstrates how bounded spaces are fused with political authority. Despite a long history of contestations over land in the Ethiopian Somali frontier, state law gained significance as a regulatory frame to grant and secure property rights of ethnic Somalis in the city of Jigjiga. In the city's land registry archive, this increased the amount of paperwork through which the relation between the Ethiopian state and Somali citizens has been remade under ethnic federal rule. Based on ethnographic and archival research in Jigjiga, this paper examines the writing practices and performances of land governance experts at different sites of paperwork where property relations are brought on paper and drawn together into law and institutional hierarchies. It reveals property formalization to consolidate state-citizen relations in symbolic and material form: in the city's expansion area where law is entangled within an emerging property landscape, and in the city's registry archive where legal documents are preserved. On that basis, this paper captures state formation as both a cultural and material process. It does so by highlighting the mediating role of bureaucratic actors and artifacts in the inscription of the state's symbolic languages in an emerging property landscape.

Fiscal Rules Cause Lower Debt: Evidence from Switzerland’s Federal Debt Containment Rule

SUMMARYThis paper studies the effect of the Swiss federal debt containment rule on public debt. Using the synthetic control method, we provide evidence that the introduction of the federal rule in 2003 has reduced public debt ratio in Switzerland by 2.5 percentage points on average until 2010. By exploiting possible mechanisms, we find no evidence that the reduction in debt ratio was driven by a debt relocation to sub‐government levels or cutbacks in investment expenditure. On one hand, we argue that the positive impact of the fiscal rule is based on its design features, namely its precise but cyclically adjusted target, the comprehensive scope to prevent budget loopholes, and the strict sanction mechanism. On the other hand, we also discuss the generalizability of our findings to other countries and contend that its direct democratic authorization has contributed to its political enforcement and viability.

Following the money: uses and limitations of FEC campaign finance data

Disclosure requirements under US federal campaign finance laws and subsequent court rulings have created greater transparency into the financing of campaigns that allow election watchdog groups to monitor and track the flow of money to and by outside groups. These requirements also have generated an extensive new source of quantitative data for scholars to use. Because of the substantial increase in spending by outside groups, it is both timely and important to examine the influence of independent expenditures on election outcomes, political behavior, and fairness in the democratic process. To evaluate and understand the impact of this spending, researchers must be aware of the scope and limitations of the campaign finance data collected by the Federal Election Commission (FEC). This article provides scholars who would like to use FEC data to answer some of these questions with an introduction to the data source, a discussion of how other scholars have used the data, and a case study to generate guidance on the challenges and potential solutions associated with accessing and analyzing these data.

Brief of Amici Curiae Evidence Law Professors in Support of Plaintiff-Appellant and Supporting Reversal in Wikimedia v. NSA

The National Security Agency (NSA) engages in warrantless upstream surveillance of international communications that travel along the Internet’s “backbone” of fiber optic cables. The government has stymied Fourth Amendment challenges on the ground that plaintiffs lack standing because they cannot prove that the NSA has intercepted, copied, or reviewed any of their communications. Of course, the reason plaintiffs have no direct evidence of such surveillance is that the government asserts that the surveillance program is a state secret, and its details are classified. In response to a motion for summary judgment in Wikimedia Foundation v. National Security Agency, the foundation produced expert reports concluding that it is all but certain that the NSA intercepted and opened at least one of Wikimedia's trillions of Internet communications. Treating the expert's opinion as inadmissible under Federal Rule of Evidence 702 as interpreted in Daubert v. Merrell Dow Pharmaceuticals, the district court granted summary judgment. In a pending appeal to the U.S. Court of Appeals for the Fourth Circuit, four evidence law professors filed a brief as amici curiae in support of Wikimedia. The brief, posted here, questions the district court’s abbreviated analysis of Rule 702 and Daubert. It describes the applicable standard for excluding expert testimony. It then argues that the expert’s method of reasoning was sound and that the underlying facts regarding the nature of Internet communications and surveillance technology, together with public information on the goals and needs of the NSA program, were sufficient to justify the receipt of the proposed testimony.

SNAP EXPANSIONS AND PARTICIPATION IN GOVERNMENT SAFETY NET PROGRAMS

This paper investigates the interactions between health and nutritional assistance programs such as Medicaid, SNAP, WIC, and school lunch programs. Exploiting variation in SNAP eligibility across states and over time, I find strong evidence of program interactions: when a state moves from the federal rule to the most extensive SNAP eligibility rule, enrollment in free school lunch and WIC increases by 4.1 and 7.9 percentage points, respectively. I estimate that the federal government spends an additional 74 cents on the school lunch program and WIC for each dollar spent on SNAP due to the expansion. (JEL H53, I38, J22)

Exchanging Information on the Potential Evidence by Parties

Exchange information (evidence) by parties is more important in Criminal case. It plays an important role in the realization of the principle of equality in adversarial principle. It is an element of the principle of equality of arms, and is also regarded as an aspect of the right to ‘adequate time and facilities’ under ECHR Article 6 (3)(b).1 All Countries Criminal Procedure Codes has a special article, which regulate how to exchange information by parties. In Georgian Criminal Procedure Code (next time as - CPG) also has a special article 83, it’s name is - Exchanging information on the potential evidence by parties. Also in this topic I will make comparative analysis how to regulate and exchange evidence by parties in USA Federal Rule of Criminal procedure code and Italian criminal procedure code. Also discuss the issue of the introduction of technical means in the exchange of information on possible evidence.

Aiding or Dissuading? The Effects of Reducing Lifetime Eligibility Limits for Need-Based Aid on Bachelor’s Degree Attainment and Time to Completion

Little is known about the effects of need-based financial aid disbursed late into college and how students respond when they approach lifetime limits for receiving aid. I exploit changes to federal Pell Grant eligibility rules that reduced the lifetime availability for grant aid from 9 to 6 full-time-equivalent years to examine these questions. Using data from the University System of Georgia and a matched difference-in-differences research design, I compare student outcomes before versus after the rule change for Pell recipients affected and unaffected by the new policy. Risk of aid exhaustion due to the policy change led students to increase their academic effort, as measured by term-over-term re-enrollment and term credits attempted and earned. I find weak evidence that the policy change accelerated time to completion and no evidence that it increased or decreased degree attainment overall. These findings indicate that aid disbursement policies and lifetime aid limits can impact the cost-effectiveness of aid expenditures and the efficiency of college degree production.

A Unified Approach to Erie Analysis for Federal Statutes, Rules, and Common Law

This Article proposes overhauling the Supreme Court’s approach to choice of law under Erie and Hanna. It develops three primary points. First, Hanna’s “unguided” “twin aims” of Erie test for resolving conflicts between federal common law and state law is irredeemably flawed. The test is a canon of interpretation masquerading as a choice-of-law rule and fails at both tasks. The Hanna approach: (1) relies on an arbitrary distinction between federal common law and statutory law that elides the indeterminate boundary between lawmaking and interpretation; (2) fails to directly confront questions about federal common law’s validity and scope; (3) cannot rely on the oft-cited but inapposite Rules of Decision Act; and (4) ignores the judiciary’s authority to fill gaps in procedural codes with federal common law. This Article is also the first to extensively explore how FRCP 83’s authorization of gap-filling undermines Hanna’s approach to choice of law. Second, preemption doctrine implementing the Supremacy Clause should fill the choice-of-law role that courts mistakenly assign to Hanna. Under the Supremacy Clause, valid federal law — including federal common law — preempts state law on matters within the federal law’s scope. The “unguided” Hanna inquiry is misguided because it invents a distracting alternative to preemption analysis. Third, reframing choice of law in terms of preemption spotlights policy questions that courts applying Hanna overlook. Preemption can occur only when a particular federal law is a valid exercise of federal lawmaking power and encompasses a disputed issue. Courts considering whether to apply federal law — including federal common law — must therefore assess the federal law’s validity and breadth. Relevant questions include: (1) whether the federal government has authority to create law covering the issue; (2) if so, which federal institutions — Congress or the judiciary — can create law; and (3) whether federal courts should interpret the ensuing federal law broadly or narrowly to embrace or avoid conflict with state law. These sensitive policy questions would benefit from direct attention and should not be blurred with Hanna’s tangents. This approach would make choice of law analysis more coherent, enhance understanding of federal common law, and require courts to directly engage the federalism and separation of powers concerns at Erie’s core.

“Houston, We Have a Lawsuit”: A Cautionary Tale for the Implementation of Value-Added Models for High-Stakes Employment Decisions

Until recently, legal challenges to the use of value-added models (VAMs) in evaluation and teacher employment decisions in federal court had been unsuccessful. However, in May 2017 a federal court in Texas ruled that plaintiff-teachers established a viable federal constitutional claim to challenge the use of VAMs as a means for their termination in Houston Federation of Teachers v. Houston Independent School District. Houston represents a significant departure from prior federal court rulings that upheld the constitutionality of VAMs to terminate teachers on the basis of poor performance. The Houston court found that the districts’ refusals to release the underlying data of VAM ratings used to terminate those teachers violated the teachers’ procedural due process rights. By denying access to the code, teachers could not protect against the government’s making a mistaken deprivation of their property right to continued right to employment. The authors discuss Houston and its potential impact, limitations, and significance.

A Systematic Review of Section 1983 Lawsuits Filed by Texas Inmates

ABSTRACT Despite considerable change in inmate rights over the past several decades, researchers, practitioners, and policymakers know little about the current state of prisoner litigation. The purpose of this study is to examine the conditions of confinement within Texas prisons that inmates allege violated their constitutional rights by examining federal court rulings decided in 2015. We performed a systematic review of 121 cases to identify themes and patterns that can inform policy and practice. The findings from our study indicate most lawsuits are unsuccessful, and that most lawsuits allege violations related to due process rights.

Vehicle accident risk assessment in mines

The problem of ensuring the safety of modern production is one of the most important. An increase in mineral production and the development of technology lead to an increase in the number of mechanized equipment used in mining enterprises. Transport, in turn, is one of the main factors leading to industrial accidents. The article analyzes the risk of such accidents at large mining enterprises. The share of accidents related to the use of vehicles increases every year and makes up about 25 % of the total number. A mine with annual production of more than 5 million tons of ore was selected as a research model. The risk probability of vehicle accidents in the absence of traffic control was determined. A technique that allows you to take into account the available statistical data on the frequencies and probabilities of possible adverse events, which may be the cause of accidents with vehicles, was chosen to assess risks. Cases of transportation of both ordinary and dangerous goods are considered. The authors determined the probability of accidents for various scenarios and types of vehicles when transporting conventional and dangerous goods, taking into account the lack of traffic light regulation at the interfaces of mining operations. In each case, several possible scenarios for the occurrence of accidents are analyzed. The results of calculations of vehicle accident risks in case of fire and explosion of dangerous cargo are presented. The probability of a collision between one vehicle and another, as well as the probability of a collision when traffic flows on the interfaces, has been established. As a result of the calculation, it was found that the risk of accidents in all cases was acceptable even taking into account deviations from the requirements of the Federal norms and rules in the field of industrial safety. The effectiveness of traffic control to reduce the risk of accidents is planned to be evaluated in further studies. This method allows us to assess the risks of accidents when justifying the safety of mines.

Interlocutory Class-Certification Appeals Under Rule 23(f)

Federal Rule of Civil Procedure 23(f) allows parties in a class action to petition the court of appeals for immediate review of class-certification decisions. Criticisms of the rule are common. Some see Rule 23(f) as a defendant-favoring tool for dragging out litigation and ensuring that no class is certified. Others contend that the rule is inconsistently applied among the circuits and should be replaced with a right to appeal. Yet there is little reliable data on how the courts have applied Rule 23(f). To bring some hard data to this discussion, I collected all petitions to appeal from class-certification decisions under Federal Rule of Civil Procedure 23(f) that parties filed from 2013 through 2017. The data revealed three insights on Rule 23(f) and class actions generally. First are the basic findings—the number of petitions the rate at which different courts grant them, and what those courts do (affirm or reverse) after granting a petition. Second, empirical testing found little support for either of the above-mentioned criticisms. And third, the data shows one corner of the class-action universe in which plaintiffs are not predominantly losing: in the Rule 23(f) context, the courts of appeals reached a plaintiff-favorable outcome over 50% of the time.

Confidentiality of substance use disorder treatment records: Update

The Coronavirus Aid, Relief, and Economic Security (CARES) Act signed into law March 27 eliminated the federal rules protecting the confidentiality of substance use disorder (SUD) treatment records. Those rules, codified under 42 CFR Part 2 of the federal regulations, are going to be changed. In an overview of the CARES Act amendments regarding confidentiality released by the Legal Action Center (LAC) in April, the law firm pointed out that the amendments don't take effect until March 27, 2021. Between now and then, the new regulations will be crafted. And that overview also includes recommendations for how the language of the new rule could mitigate against the damages expected when patients learn that their treatment may not be confidential.

Legal problems of ensuring environmental and energy security of the coal industry

In conditions of increased danger of facilities and activities for the extraction (processing) of coal (oil shale), there are objective needs to ensure the coal industry fuel and energy complex of energy and environmental security. The article deals with the problems of consistency of strategic planning documents, legislation, Federal rules and regulations that define targets, indicators and legal measures aimed at ensuring industrial safety in the coal industry and reducing its negative impact on the environment, health of employees and the population.

A Matter of Conscience: Examining the Law and Policy of Conscientious Objection in Health Care

Conscientious objection refers to refusal by a health care provider (HCP) to provide certain treatments, including the standard of care, to a patient based upon the provider's personal, ethical, or religious beliefs. Federal and state rules regarding conscientious objection have expanded the scope of legal protections that HCPs and institutions can invoke in support of refusal. Opponents of these rules argue that allowing refusal of care deprives patients of care that conforms to professionally established guidelines, contradicts long-standing principles related to informed consent, interferes with the ability of health care facilities to provide safe and efficient care, and leaves the patient without means of redress for injury. Proponents respond that such rules are necessary to preserve the moral integrity of providers, including institutions. Although refusal rules are most often associated with abortion, some HCPs have cited moral concerns regarding contraception, sterilization, prevention/treatment of sexually transmitted infections, transition-related care for transgender individuals, medication-assisted treatment of substance use disorders, the use of artificial reproductive technologies, and patient preferences for end-of-life care. Evidence suggests that the burden of conscientious refusal falls disproportionately on vulnerable populations, and legitimate concern exists that moral disagreement is merely pretext for discrimination. A careful balance must be struck between the defending the conscience rights of HCPs and the civil rights of patients.

Urgensi Plea Bargaining System Dalam Pembaruan Sistem Peradilan Pidana Di Indonesia: Studi Perbandingan Plea Bargaining System Di Amerika Serikat

This study aims to answer two problems: first, how is the concept of implementing a bargaining system in the criminal justice system in the United States? Second, what is the urgency of implementing the Plea Bargaining System in reforming the criminal justice system in Indonesia. The research method used is juridical normative with a conceptual approach and comparison method. This paper intends to provide legal problem solving for the accumulation of criminal cases in Indonesia, namely by implementing a plea bargaining system in reforming the criminal justice system in Indonesia. This study concludes that, first, In the United States, the plea bargaining mechanism is carried out at the arraignment and preliminary hearing stages. Second, the plea bargaining system in the United States is regulated in the Federal Rules of Criminal Procedure rule 11. The urgency of implementing a plea bargaining system in the criminal justice system in Indonesia can be seen from several considerations, namely philosophical, juridical, sociological, and political-legal considerations. The conclusions and recommendations of the authors are implementing a plea bargaining system in reforming the criminal justice system in Indonesia in order to realize an effective and efficient criminal justice.

Is it time to consider a medical marijuana policy?

As more and more states approve the use of medical marijuana, hospitals will surely be admitting patients who rely on cannabis for medicinal purposes. Upon admission, institutions will be faced with the decision to allow patients to continue their cannabis as an inpatient or disallow its use for fear of legal repercussions. Therefore, careful planning and the development of policies to guide clinicians are needed as use of medical cannabis becomes more widespread. “There is an ever-increasing amount of research linking cannabis to positive treatment outcomes,” Benjamin Caplan, MD, founder of CED Clinic in Massachusetts, told Pharmacy Today. “The efficacy of cannabis, particularly when it is used as a component of a treatment plan for chronic pain, and its potential to be a replacement for opioids, makes it especially appealing to use in select patients,” he said. “Unfortunately, there are very few hospitals in the United States that formally embrace cannabis as a helpful option for their patients.” Caplan explained that as long as cannabis remains a Schedule 1 substance per the Controlled Substance Act, many hospitals fear they may violate federal rules that prohibit them from having these types of substances on the premises. “Hospitals and their clinicians face conflict, either to condone the use of cannabis for their patients’ well-being, yet violate and risk losing their federal contracts, or to withhold the medicine from patients and uphold their formal obligations, suffering potential risk and ethical liability to their patients,” Caplan said. To address the issue of medical cannabis in the hospital setting, the Minnesota Hospital Association (MHA) has released three sample policies that may be useful to facilities and clinicians. The sample templates, available online, focus on the following three scenarios: 1) not allowing use of medical cannabis in the hospital; 2) allowing its use and administration by patients; or 3) allowing its use and administration by nurses. MHA noted that committees such as the pharmacy and therapeutics committee, physician committees, legal committees, and/or executive committees should all work together to determine appropriate processes for patients using medical cannabis. Decisions may be based on patient characteristics and needs, as well as staff and legal considerations. There is no single standard for all Minnesota hospitals, with some prohibiting its use and others allowing it only in select situations. They key is that policies are put in place to guide clinicians before they encounter these patients. Caplan stressed that misconceptions and misinformation about cannabis have permeated both the popular and medical cultures for decades. He described the mountain of scientific literature and data that exist today in support of its abundant medicinal qualities, of which many clinicians seem to be unaware. He also commented on some of the safety considerations associated with cannabis use, such as select drug–drug interactions and effects on metabolism and the heart. “Plant cannabinoids are degraded by the cytochrome P450 hepatic enzymes, and as with other medications that are processed hepatically, the presence of enzyme regulators, whether inhibitors or activators, affects the duration and strength of plant cannabinoids,” Caplan said. “Generally speaking, patients taking medications or foods that inhibit cytochrome P450 may have prolonged or stronger effects from the same cannabis consumed without enzymatic inhibition, whereas enzyme activators will have the opposite results.” In addition to drug–drug interactions that may be affected by hepatic degradation, Caplan noted that chronotropic effects and cannabis’s activation of cardiomyocytes deserve consideration. “While the majority of cannabis patients are not at elevated risk related to its stimulating effects on normal cardiac function, patients with sensitive, damaged, or at-risk physiology would likely benefit from a cautious approach to self-medicating or guidance from a supportive expert.” Hospital pharmacists should be aware of and familiar with policies that address the use of medical cannabis in the inpatient setting. If use is allowed, pharmacists can play an essential role in parsing therapeutics, discussing appropriate use with their patients and other care team members, and evaluating patients for potential drug–drug interactions and adverse effects.