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Government lawyers frequently argue, and courts have frequently held, that noncitizens in removal proceedings do not have the same rights as defendants in criminal proceedings. A common argument made to support this position is that removal proceedings are civil matters. Accordingly, a noncitizen facing deportation has fewer due process protections than a criminal defendant, and deportation proceedings similarly provide fewer protections than criminal proceedings. In many ways, however, the rules governing immigration proceedings differ markedly from those governing civil actions in court. Immigration proceedings suffer from arcane and hypertechnical procedures that impede immigrants from having their claims reviewed on the merits. Notably, similar problems plagued the civil justice system back in the early twentieth century. The response was to create the Federal Rules of Civil Procedure, which emphasized a preference for deciding cases on their merits rather than on procedural technicalities. The modern Federal Rules have substantially simplified pleading requirements and emphasized flexibility in order to foster the goals of fairness, efficiency, and decisions on the merits. This Article argues that the process that spawned the Federal Rules can offer valuable lessons for reforming immigration proceedings. The Article identifies several examples where immigration rules differ from the Federal Rules in ways that inhibit decisions on the merits. It then proposes a fundamental reexamination of immigration rules with an eye toward promoting decisions based on substance rather than procedure, as well as a structure for ongoing reform. Given the high stakes in removal proceedings, if society continues to treat immigration proceedings as civil matters, the least it can do is incorporate those aspects of the Federal Rules that best promote access to justice for noncitizens., INTRODUCTION 1380 I. IMMIGRATION AS A CIVIL MATTER 1386 A. The Origin of Immigration Hearings as Civil Proceedings 1386 B. Immigration Court Process 1388 II. THE FEDERAL RULES OF CIVIL [...]

Expert testimony is offered at the overwhelming majority of trials conducted in the United States. In many of these cases, it is absolutely essential for the plaintiff or prosecutor to introduce such testimony. The plaintiff may need expert testimony to prove general causation in a toxic Tort case, and similarly the prosecutor may need to resort to expert testimony to establish the accused's identity as the perpetrator of the charged crime. For decades, the proponents of expert testimony have mounted campaigns to lower the evidentiary barriers to expert testimony. For most of the 20th century, the governing American test for the admissibility of expert testimony was the Frye general acceptance standard. The courts espousing the standard characterized it as a conservative test that was needed to compensate for lay jurors' tendency to ascribe excessive weight to new scientific theories and techniques. However, the proponents of expert testimony were astute enough to realize that the reach or scope of a test can be every bit as important as its rigor or strictness. Given Frye's rationale, the proponents of expert testimony persuaded most Frye jurisdictions to narrow the substantive scope of the test to novel, instrumental, purportedly scientific testimony. Consequently, many courts exempted traditional forensic techniques, soft science, and non-scientific expert testimony from scrutiny. In its celebrated 1993 Daubert decision, the Supreme Court announced that the enactment Federal Rules of Evidence in 1975 had impliedly overturned the Frye test. Instead, the Court derived a new reliability/validation test from the expression, 'scientific... knowledge,' in the text of Federal Rule 702. In addition, the Court listed a number of factors such as error rate that judges could consider in deciding whether the methodology the expert proposed relying on was sufficiently reliable. As in the case of the Frye test, the proponents of expert testimony endeavored to limit the substantive scope of the new test. The proponents pointed out that Rule 702 refers in the alternative to 'scientific, technical, or other specialized knowledge.' They seized on that language as the basis for contending that the reliability test applied only to scientific testimony. In its 1999 Kumho decision, the Supreme Court rejected that contention. On the one hand, the Court reached the sensible conclusion that trial judges might have to apply the reliability differently to various types of expertise. The factors listed in Daubert might be inappropriate for assessing the reliability of non-scientific expertise; and in assessing non-scientific expertise, a judge might have to apply 'reasonable measures of reliability' that were not listed in Daubert. However, the Court ruled that the basic requirement for a showing of reliability derives from the term 'knowledge' in Rule 702 and that the requirement applies across the board to all types of expert testimony. After failing to persuade the Court to narrow the substantive scope of Daubert, the proponents of expert testimony have shifted to the procedural front. This front, especially the pretrial phase, is critical because the vast majority of civil and criminal cases--over 95% in both arenas--are disposed of short of trial. Some lower courts have used broad language to the effect that Daubert is largely inapplicable to bench trials and pretrial proceedings such as class certification and summary judgment hearings. However, an analysis of the Federal Rules of Evidence and Civil Procedure demonstrates that with the solitary exception of the permissibility of using hearsay affidavits and declarations at summary judgment hearings, there are no exemptions from the Evidence Rules for bench trials or these pretrial proceedings. The article then analogizes to Kumho and argues that with one exception, when the judge is the decisionmaker at these proceedings, the judge may apply Daubert flexibly in a relaxed fashion. To be sure, a belief in the judiciary's epistemic exceptionalism can be carried too far. However, as a repeat player at trials where expert testimony is almost always presented, the typical trial judge is likely to have a much better sense of the potential weaknesses of expert testimony than the average juror possesses. The article advances the policy argument for such differential treatment and illustrates how a judge might apply several of the Daubert factors more liberally at such proceedings than he or she would at a jury trial. However, recurring to the text of Federal Civil Rule 53 governing summary judgment motions, the article concludes that when any trial after a summary judgment hearing would be a jury trial, at the summary judgment hearing the judge must enforce the Daubert standard every bit as rigorously as he or she would at a jury trial. Civil Rule 53, Evidence Rule 702, and Daubert/Kumho demand nothing less., ABSTRACT 615 TABLE OF CONTENTS 618 I. INTRODUCTION 619 II. A DESCRIPTION OF THE GRADUAL NARROWING OF THE SUBSTANTIVE SCOPE OF FRYE'S GENERAL ACCEPTANCE TEST 624 III. A DESCRIPTION OVER [...]

Under 28 U.S.C. [section] 1782(a), parties to foreign legal proceedings can obtain discovery orders from United States federal courts. In other words, if a foreign party needs physical evidence located in--or testimony from a person residing in--the United States to support their claim or defense, they can ask a district court to order the production of that evidence. For almost two decades, [section] 1782(a) practice has operated as a procedural Wild West. Judges routinely consider [section] 1782(a) applications ex parte--that is, without giving the parties subject to the resulting discovery orders a chance to oppose them--and grant those applications at a staggering rate: more than 90% of the time. In its June 2022 decision in ZF Automotive US, Inc. v. Luxshare, Ltd., the Supreme Court transformed [section] 1782 jurisprudence for the worse. The Court held that private arbitral tribunals do not fall under [section] 1782(a)'s scope and that, as a result, parties cannot obtain discovery for use in foreign private arbitration under the provision. This Note argues that, after ZF Automotive, [section] 1782(a) jurisprudence contains two dangers: (1) it subjects some parties to burdensome discovery orders with few procedural safeguards, and (2) it prevents parties who have chosen to arbitrate rather than litigate from obtaining discovery entirely. This Note contributes to existing scholarship by proposing structural changes that would improve [section] 1782(a) practice. Specifically, it argues that courts cannot root out the procedural flaws that plague [section] 1782(a), and that, consequently, Congress should enact a new and improved [section] 1782 to address these manifold problems., TABLE OF CONTENTS INTRODUCTION I. THE HISTORY AND CURRENT STATE OF [SECTION] 1782(A) PRACTICE A. The Evolution of [section]l 782(a)'s Text B. Notable Omissions from [section] 1782(a) C. Intel Corp. [...]

I. THE STRICT CONSTRUCTION OF FEDERAL RULE OF CRIMINAL PROCEDURE SIX A. Government personnel B. Preliminary to or in connection with a proceeding C. Particularized need II. AMERICAN PRIVACY LAW [...]

This paper examines the theoretical and evidentiary challenges associated with interpreting the release of claims that are unknown to private parties at the time the release is executed. It has three objectives. First, the author examines the relevant case law concerning the judicial enforcement of releases of unknown claims. The author shows that courts regularly apply the doctrinal framework of objective contractual interpretation, while at the same time they state that the scope of the release is limited to the claims that are contemplated by the parties at the time of the execution of the release. The unclear relationship between objective intention and contemplation requirement is at the root of the legal uncertainty surrounding the determination of the scope of the release. Second, the author contends that the doctrinal framework of objective contractual interpretation confusingly characterizes the judicial task. When deciding whether unknown claims are included within the scope of broadly worded releases, courts do not engage in a genuine interpretive effort; rather, they engage in a gap-filling exercise. They determine how the risk of unanticipated claims should be allocated on the basis of what may reasonably be imposed on either the releasor or the releasee. Finally, the author proposes a default rule to provide guidance on the judicial allocation of the risk associated with unknown claims. The proposed rule consists of the three principles: (1) courts should presume that generally worded releases are objectively intended to release all claims that are discoverable with reasonable diligence by the parties at the time the release was executed; (2) the plaintiff-releasor advancing an unanticipated claim should bear the burden of proving that at the relevant time, they could not, with reasonable diligence, have acquired knowledge of the claim; (3) the plaintiffs knowledge of a claim is evidenced by their knowledge of the elements constituting a claim. The author contends that by adopting such proposed principles, Canadian courts will see an incremental improvement in both legal certainty and predictability in cases concerning the effect of general releases on unknown claims., Introduction I. Case Law A. The Blackmore Rule B. Decisions Interpreting Releases Narrowly (i) Words as a Factor Limiting the Scope of the Release (ii) The Transactional Context as a [...]

ABSTRACT Myriad obstacles prevent victims of police violence from vindicating civil claims against the officers who have harmed them and the cities which have failed them. Though these plaintiffs face [...]