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The article discusses the trends in intermediate appellate courts in Florida over the application of the tipsy coachman doctrine to affirm on alternative bases decisions by lower courts, particularly the decisions stating that the doctrine cannot be used to support affirmance based on unpreserved factual issues. Also cited are some cases like MacNeill v. O'Neal and Shands Teaching Hospital and Clinics, Inc. v. Mercury Insurance Co. of Florida.

The article argues that the Florida Supreme Court should expand its interjurisdictional certification procedure to include all federal courts and all state, tribal and foreign country appellate courts. Topics include the introduction of the concept of interjurisdictional certification in Florida in 1945 whereby federal courts could seek guidance on unsettled questions of state law, the lack of reports about the history of the certification procedure, and the problems with the procedure.

This Symposium contribution will offer a prediction: If Loper Bright Enterprises v. Raimondo overrules or ousts Chevron, the decision may have less practical effect in the lower courts than we might expect. In most cases, reviewing courts will continue to ask whether the relevant statutory language has a clear meaning that precludes the agency's interpretation or requires another, using the same interpretive tools and methodologies that they have before. When courts find no clear meaning, they will ask whether the agency's interpretation should prevail in basically the same manner as they always have. The more specialized an interpretation, the more likely courts will be to agree with it. Although courts will not always give controlling weight to the agency's interpretation, they are still likely to do so when it matters most: when the interpretive dispute amounts to a policy disagreement. In such cases, judges may feel conflicted substituting their judgment for that of the agency, as both Chevron and State Farm have long warned against. They may begin treating agency interpretations as policy decisions and applying State Farm, rather than deciding the underlying questions themselves. Courts did not have to think much about the choice between Chevron and State Farm while both pointed toward deference, and they may have defaulted to Chevron whenever statutory language was involved. But after Loper Bright, courts will feel the weight of this choice. It may be the difference between de novo review and arbitrariness review, judicial judgment and judicial deference, and judicial responsibility and agency authority. If courts respond by using State Farm, they will moderate the effect of Loper Bright for any number of agency interpretations to which Chevron formerly applied. [ABSTRACT FROM AUTHOR]

Chevron U.S.A. Inc. v. Natural Resource Defense Council, Inc. is frequently discussed in general terms without sufficient attention to the specifics of the case, including the relevant statutes, the regulations being reviewed, and the arguments that the parties presented and failed to present. As the Supreme Court now considers whether to "overrule" Chevron, it is imperative to review how the case should have been decided had the parties presented the complete set of statutes governing judicial review. Such a "de novo" look at Chevron would produce the same outcome (sustaining the agency's regulations) but with radically different reasoning, beginning with a recognition that a reviewing court must "decide" all relevant questions of law. Yet in deciding all relevant questions of law, reviewing courts must frequently confront, as in Chevron itself, the crucial question of how much delegated power the agency possesses. Reviewing courts should focus on that statutory issue--the extent of delegation--and eschew the pointless project of spinning elaborate judicially-fabricated rules concerning deference to agency legal interpretations. Much of that reorientation from deference to delegation was already accomplished in United States v. Mead. In the Loper Bright Enterprises v. Raimondo and Relentless v. Department of Commerce cases, the Court should complete the reorientation, disavow the analysis in Chevron, and determine de novo the amount of power delegated to the agency. That approach (i) respects the varied agency delegations authorized by Congress; (ii) adheres to the Administrative Procedure Act's comprehensive framework for judicial review; and (iii) requires the outcomes in the Loper Bright and Relentless cases to be controlled by the unusually narrow delegation of agency power in the relevant statutes. [ABSTRACT FROM AUTHOR]

The article discusses the court case North Carolina Coastal Fisheries Reform Group v. Capt. Gaston LLC, wherein the U.S. Court of Appeals for the Fourth Circuit applied semantic and substantive versions of the major questions doctrine. The court considered whether bycatch was a pollutant under the Clean Water Act. It discusses the authority of the U.S. Environmental Protection Agency to regulate bycatch and the political and economic significance and federalism of major question doctrine.

Administrative law doctrines such as Chevron seek to strike a balance between adequate delegated power and sufficient checks on such power. The major questions doctrine reinforces the latter. Recent decisions finding major questions, however, have shown a departure from textualist principles, which formed the doctrine’s foundation. Justice Gorsuch’s opinion in NFIB v. OSHA is an example of this desertion of textualist principles and should thus be viewed as an improper application of the major questions doctrine. Rather than remodeling the major questions doctrine, textualist judges should acknowledge that this form of antitextual analysis is nothing short of a revival of the nondelegation doctrine. Failing to return the doctrine to textualist principles weakens the reliability of the major questions doctrine as a tool for statutory interpretation and damages the credibility of textualist judges’ opinions that employ the doctrine in administrative law cases. [ABSTRACT FROM AUTHOR]

What do the Justices think they're doing? They seem to act like appeals judges, who address questions of law as needed to reach a decision--and yet also like curators, who single out only certain questions as worthy of the Supreme Court's attention. Most of the time, the Court's "appellate mind" and its "curator mind" are aligned because the Justices choose to hear cases where a curated question of interest is also central to the outcome. But not always. In some cases, the Court discovers that it cannot reach--or no longer wishes to reach--the originally curated question. Looking at what the Justices say and do in such instances offers a revealing glimpse into the interplay between their appellate and curator roles. These cases illustrate how the norms of appellate judging can enhance, rather than constrain, the Court's discretion in choosing which issues to address and which to avoid. Using this discretion, however, entails the risk of distorting legal doctrines beyond those curated for review. [ABSTRACT FROM AUTHOR]

In Universal Health Services, Inc. v. United States ex rel. Escobar, the Supreme Court established a new framework for determining whether the FCA's "demanding" materiality requirement is satisfied. Lower courts are now disposing of more qui tam cases where relators have failed to meet Escobar's strict materiality standard. Because government agencies are the sole custodians of the core materiality evidence identified in Escobar, contractors are now obtaining broad discovery from governmental agencies in qui tam cases. Additionally, the government is dismissing more qui tam case due to the anticipated burden on government agencies of providing discovery related to Escobar's materiality requirement. [ABSTRACT FROM AUTHOR]

The distinction between questions of law and questions of fact is deceptively complex. Although any first-year law student could properly classify those issues that fall at the polar ends of the law-fact continuum, the Supreme Court has itself acknowledged that the exact dividing line between law and fact--the point where legal inquiries end and factual ones begin--is "slippery," "elusive," and "vexing." But identifying that line is crucially important. Whether an issue is deemed a question of law or a question of fact often influences the appointment of a courtroom decision maker, the scope of appellate review, the administration of certain evidentiary rules, and the application of preclusive or precedential weight to its resolution. This Article seeks to bring theoretical coherence and analytical clarity to the law-fact distinction. It pushes back against the formal view that questions of law and questions of fact are categorically distinct. Instead, drawing on legal process principles, this Article argues that an issue is typically deemed a question of law or a question of fact because legitimacy concerns demand its resolution by a particular decision maker. Through that reconceptualization, this Article's legal process model offers a number of significant contributions. First, as a descriptive matter, it explains the cause of the jurisprudential turbulence surrounding the law-fact distinction. Second, normatively, it highlights the weaknesses of traditional law-fact model, which enables institutional aggregations of power. Finally, it promises to transform the process of classifying issues, turning that analysis into a simple transparent effort to allocate decision-making authority in a manner that will best optimize the legitimacy of adjudication--that will best achieve procedural justice. [ABSTRACT FROM AUTHOR]

The 'threshold of materiality' introduced by the High Court of Australia in Hossain v Minister for Immigration and Border Protection, and confirmed in subsequent cases, is a new presumption of statutory interpretation which universally qualifies the existing implied limitations on executive decision-making power. This article contends that the High Court did not adequately justify the presumption's creation. It surveys several prior decisions to demonstrate the presumption's doctrinal precariousness; criticises its lack of justification by reference to principles of statutory interpretation; and compares the Court's creation of the presumption to other cases which, it is argued, have more persuasively justified the evolution of interpretative presumptions. Finally, the article discusses issues of pragmatism, the presumption's reversal of the onus of proof, and the problematic residual discretion to refuse relief. [ABSTRACT FROM AUTHOR]

Due to their success in routine tasks such as voice recognition, image classification, and text processing, extensive attention has been aroused on how to use artificial intelligence (AI)-based automation tools in the judicial-trial process to improve efficiency. Meanwhile, judicial trial is a complex task that requires accurate insight and subtle analysis of the cases, law, and common knowledge. Applying the results provided by AI-based automation tools directly to the judicial-trial process is controversial due to their irregular logic and low accuracy. Based on this observation, this article investigates the logic underlined in judicial trials and the technical characteristics of AI, and proposes an AI-based semantic assist approach for judicial trials that is logical and transparent to the judges. [ABSTRACT FROM AUTHOR]

In Ashcroft v. Iqbal, building on Bell Atlantic Corp. v. Twombly, the Supreme Court instructed district courts to treat a complaint's conclusions differently from allegations of fact. Facts, but not conclusions, are assumed true for purposes of a motion to dismiss. The Court did little to help judges or lawyers understand this elusive distinction, and, indeed, obscured the distinction with its language. The Court said it was distinguishing "legal conclusions" from factual allegations. The application in Twombly and Iqbal, however, shows that the relevant distinction is not between law and fact, but rather between different types of factual assertions. This Essay, written for a symposium on the tenth anniversary of Iqbal, explores the definitional problem with the conclusion-fact distinction and examines how district courts have applied the distinction in recent cases. [ABSTRACT FROM AUTHOR]

The crucial question for many legal disputes is "what happened,"? and there is often no easy answer. Fact-finding is an uncertain endeavor and risk of inaccuracy is inevitable. As such, I ask, on what basis can we accept the legitimacy of judicial fact-findings. I conclude that acceptable factual determinations depend on adherence to a legitimate process of fact-finding. Adopting Jürgen Habermas's insights, I offer a theoretical grounding for the acceptability of judicial fact-finding. The theory holds that legal processes must embody respect for legal subjects as equal and autonomous agents. This necessitates two procedural features. First, fact-finding processes must be factually reliable. This requires: (a) relevant evidence is admissible and exclusions are justified based on respecting human autonomy; (b) error-risk management is internally coherent and consistent; (c) the standard of proof is, at minimum, a balance of probabilities; (d) evidence is used rationally. Second, fact-finding processes must ensure fulsome participation rights. This project is justificatory—civil justice systems are imperfect, but there are attainable conditions that make them good, which must never be compromised. [ABSTRACT FROM AUTHOR]

This Article introduces an approach to administrative law that reconciles a more formalist, classical understanding of law and its supremacy with the contemporary administrative state. Courts adopting this approach, which I call “neoclassical administrative law,” are skeptical of judicial deference on questions of law, tend to give more leeway to agencies on questions of policy, and attend more closely to statutes governing administrative procedure than contemporary doctrine does. As a result, neoclassical administrative law finds a place for both legislative supremacy and the rule of law within the administrative state, without subordinating either of those central values to the other. Such an approach reconciles traditional notions of the judicial role and separation of powers within the administrative state that Congress has chosen to construct and provides a clearer, more appealing allocation of responsibilities between courts and agencies. This theory is “classical” in its defense of the autonomy of law and legal reasoning, separation of powers, and the supremacy of law. These commitments distinguish it from theorists that would have courts make a substantial retreat in administrative law. It is “new” in that, unlike other more classical critiques of contemporary administrative law, it seeks to integrate those more formalist commitments with the administrative state we have today — and will have for the foreseeable future. [ABSTRACT FROM AUTHOR]

This paper deals with the distinction between law and fact. In the article 'The myth of the law-fact distinction' (Allen and Pardo, 2003a), Ronald Allen and Michael Pardo argue that there is no ontological, epistemological or analytical distinction between law and fact. Instead, they claim that the distinction ought to be understood pragmatically, by considering whether the judge or jury is in the best position to decide the question. The problem with this is that it does not add to the understanding. In a soon-forgotten passus they suggest that the distinction is between legal and non-legal facts, rather than between law and fact. In this paper I revise the article by Ron and Pardo and make an argument in favour of the distinction between legal and non-legal facts. The notion of 'legal' and 'non-legal' underlines the fact that the dichotomy is relevant specifically from a legal point of view. In the legal context different consequences apply to law and fact, the same is not true in a non-legal context. [ABSTRACT FROM AUTHOR]

The Court of Appeals for the Federal Circuit ("Federal Circuit") has long relied on active appellate review to bring uniformity and clarity to patent law. It initially treated the PTO the same as the federal district courts, reviewing its factual findings for clear error and its legal conclusions de novo. Following reversal by the Supreme Court in Dickinson v. Zurko, the Federal Circuit began giving greater deference to PTO factual findings. But it continued to review the PTO's legal conclusions de novo, while coding an expansive list of disputed issues in patent cases as legal conclusions, even when they rest on subsidiary factfinding. Congress expanded the role of the PTO in adjudicating challenges to patent validity in the Leahy-Smith America Invents Act of 2011 ("AIA"), authorizing new adjudicatory proceedings before the Patent Trial and Appeal Board ("PTAB") as an alternative to federal district court litigation. The AIA provides for Federal Circuit review of PTAB decisions, without specifying standards of review. The scope of review could determine the success of these proceedings as a quicker, cheaper, and more expert alternative to district court litigation of patent challenges. The Federal Circuit applies the same standards of review to PTAB decisions in AIA proceedings that it applies to other PTO rulings, reviewing legal conclusions de novo and factual findings for substantial evidence. It also follows the same characterizations of issues as legal or factual that it has long used in the context of court/court review. In the past, by maximizing the scope of appellate review, these characterizations allowed the Federal Circuit to exercise greater quality control over generalist trial courts with limited competence to resolve patent matters. The net benefits are more dubious as applied to decisions of expert PTAB panels in AIA adjudications. Yet reversal rates at the Federal Circuit are essentially the same for PTAB decisions as for decisions of district courts in patent cases, threatening to frustrate a system designed to improve patent quality while limiting litigation costs. This Essay reconsiders the proper scope of judicial review of PTAB rulings on two issues that the Federal Circuit codes as legal conclusions with factual underpinnings: nonobviousness and claim interpretation. Drawing on a functional approach to judicial review of mixed questions of law and fact, it argues for more deferential review of PTAB rulings on nonobviousness and claim interpretation given the expertise of the administrative tribunal and the case-specificity of the rulings. The Federal Circuit would do better to confine de novo review to generalizable legal rulings that provide guidance in future matters rather than replicating the work of the PTAB from the appellate bench on routine case-specific rulings. [ABSTRACT FROM AUTHOR]

This article examines the distinction between judicial reasoning flawed by errors on questions of law, properly addressed on appeal, and errors that constitute judicial misconduct and grounds for removal from the bench. Examples are from the transcripts and reasons for decision in R v George SKQB (2015), appealed to the Saskatchewan Court of Appeal (2016) and the Supreme Court of Canada (2017), and from the sentencing decision rendered by the same judge more than a decade earlier in R v Edmondson SKQB (2003). Both were sexual assault cases. In George a thirty-five-year-old woman with five children was tried and ultimately acquitted of sexual assault and sexual interference after she was assaulted in her home by a fourteen-year-old male. Striking similarities between the reasoning and language in the trial decision in George and the sentencing decision in Edmondson demonstrate entrenched antipathy for sexual assault law and the fundamental principles of justice, equality, and impartiality. This is arguably judicial misconduct, persisting despite access in the interim to many years of judicial education programming, not merely legal error. The problem does not lie with the judge alone, however. A toxic mix of misogyny and blindly zealous enforcement of the law appears to have undermined the administration of justice in George from the outset at all levels. The problems are systemic. Were this not the case, it is likely that Barbara George would not have been charged. [ABSTRACT FROM AUTHOR]

Stare decisis is the mainstay of doctrinal stability. But through the little-known expedient of "confining a case to its facts," courts can evade the pull of stare decisis by overruling everything a decision stands for except its precise result. This doctrinal workaround has enabled courts to sidestep the formal requirements that attend overruling and quietly undermine precedent without stirring public interest. But confining's conveniences are offset by its considerable dangers: it cuts courts loose from the constraints of stare decisis; it requires judges to engage in unprincipled, fact-bound adjudication; it dilutes the integrity of the law by enshrining contradictory legal principles; and it conflicts with modern retroactivity doctrine. Remarkably, the law of precedent has failed to account for this unusual practice. Confining and overruling have been deployed interchangeably, with little regard for their distinctive attributes. In this first in-depth treatment of confining, we offer guidelines for its responsible use--ones designed to place the practice on sounder theoretical footing and to end its indiscriminate use across the federal and state court systems. [ABSTRACT FROM AUTHOR]

In 1967, the Supreme Court held that admitting the results of an unnecessarily suggestive police identification procedure could violate a defendant's right to due process. Over the next decade, several rulings narrowed and clarified the standard into the Brathwaite test, which remains in use today. This test allows the admission of identifications obtained through unnecessarily suggestive procedures if a court finds the identification to nonetheless be reliable. Applying the test requires courts to rule on a procedure's necessity, its suggestiveness, and the resulting identification's reliability. Making these determinations forces courts to grapple with intertwined questions of law and fact--questions whose answers have changed with advances in the scientific understanding of memory. The most commonly used type of suggestive procedure, known as a showup, involves a witness viewing a single suspect for identification. Although showup procedures can be useful when a lineup or photo array is not feasible, showups significantly increase misidentifications because the procedure implicitly tells a witness who the police believe is guilty, rendering the technique inherently suggestive. Further, because showups do not test a witness's memory, they cannot safeguard against a mistaken witness, like a lineup can. To help courts avoid the difficult task of analyzing showup identifications for reliability, this Note proposes a simplified test for admitting them, arguing that courts may look to a showup's necessity as the sole determining factor of admissibility. By considering the interplay of increased scientific understanding with existing law, this Note demonstrates that the proposed simplification is not only sound policy but is also permissible and advisable under current Supreme Court doctrine. [ABSTRACT FROM AUTHOR]

The legal system has been ambivalent about naked statistical evidence. Addressing this ambivalence, the article explores the epistemological status of naked statistical evidence and its normative and practical implications. It is suggested that since naked statistical evidence cannot generate knowledge, it cannot be the basis for assertions of facts; and assertions of facts are practically and legally important: they are essential in order to establish the court's responsibility for its decisions and its errors. Such responsibility is needed in order to maintain the legitimacy of the legal system; to avoid unfairness to defendants; and to ensure that legal decision‐makers have no valid claims against the decision‐making arrangement. As a result, the legal system is inclined to avoid statistical evidence altogether. [ABSTRACT FROM AUTHOR]

The article discusses the addition of four questions to the May 2017 Contingent Worker Supplement by the federal agency U.S. Bureau of Labor Statistics (BLS) to measure the emerging work type electronically mediated work. It also discusses the monthly labor force survey Current Population Survey (CPS) of the U.S.

The article discusses various aspects of the 2018 rule amendments for the Idaho courts, and it mentions an electronic filing rule, an Idaho Appellate Rule involving the certification of a question of law, and the Idaho Rules of Civil Procedure governing legal costs and summons. Idaho Criminal Rules about sentences, new trials, and the death or disability of a judge are assessed, along with the Idaho Rules of Evidence regarding interpreters and the competency of a juror as a witness.

This article considers the application of PW Young, "Fact finding made easy" (2006) 80 ALJ 454 to the unique challenges faced by decision-makers and advocates in refugee status determination (RSD) in Australia, drawing upon the author's experiences in refugee law and advocacy. Unlike most other forms of proceedings, RSD offers little scope for corroboration of individual claims for asylum, requiring greater consideration of the inherent plausibility of claims and the manner in which such claims are presented than of whether external sources can verify particular claimed incidents. The utility of Young's observations in this context is assessed and the need for caution in applying principles of fact-finding drawn from other jurisdictions to the particular context of RSD is emphasised. [ABSTRACT FROM AUTHOR]

The legal consequences of an action often depend on information that only the actor knows. This information is typically inferred from the observable "facts and circumstances" attending the actor's conduct, which creates a seemingly unresolvable tension in legal design. On the one hand, these unstructured inquiries give free rein to the factfinder's judgment about which facts justify an inference about the hidden information. On the other hand, specifying the facts that will be used to draw that inference would provide a roadmap for actors to adjust their conduct strategically to manipulate the factfinder's conclusions. I argue that this tension can be resolved by applying insights from the economics literature on asymmetric information. These insights help answer both the substantive question of which facts and circumstances should be taken into account and the procedural question of whether they should be specified by the legislature or left to the courts. [ABSTRACT FROM AUTHOR]

n Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,1the Supreme Court unanimously adopted an approach to interpreting federal statutes under which the courts are required to give substantial deference to the interpretations by the administrative agencies that enforce them. The Republicans in the House of Representatives have declared war on the Chevron doctrine, and they managed to pass H.R. 4768, the “Separation of Powers Restoration Act of 2016,” which amends section 706 of the Administrative Procedure Act (APA) to require federal courts reviewing decisions of law of administrative agencies to “decide de novo all relevant questions of law, including the interpretation of constitutional and statutory provisions.”2 There appeared to be little chance that the Senate would join the House, at least in part because of the filibuster. And if it had, President Obama would have vetoed the bill, as would almost any other President.3Politics aside, is the Chevron doctrine sensible, at least in most cases, or is it as ill-advised as its opponents claim? This essay will argue that, by and large, Chevron makes sense in most cases, but that it needs some fine-tuning around the edges. In other words, mend it, don’t end it. Before turning to possible adjustments, it is worth taking a minute to recall the origins of Chevron,and how the Supreme Court considered it to be quite unremarkable at the time it was decided. [ABSTRACT FROM AUTHOR]

In Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., the Supreme Court deferred to an agency's controversial interpretation of a key provision of a regulatory statute. Lower courts now apply "Chevron deference" as a matter of course, upholding agencies' reasonable interpretations of ambiguous provisions within the statutes they administer. Recently, however, the Court refused in King v. Burwell to defer to an agency's answer to a statutory question, citing the "deep economic and political significance" of the question itself. The Court in King offered barebones guidance regarding the scope of and rationales for embracing this so-called "major questions exception" to Chevron deference, and the decision has thus created uncertainty regarding Chevron's application in the courts below. Surveying the post-King landscape, we advance in this Article a simple and straightforward proposal designed to ameliorate the confusion that King has wrought. Our proposal is that only the Supreme Court should apply the major questions exception: absent further instruction from the Court, neither the federal district courts nor the U.S. courts of appeals should withhold Chevron deference on grounds of majorness alone. Our argument stems from a comparative institutional analysis of the Court and its subordinates, coupled with an unpacking of the various policies and purposes that the major questions exception might serve. These investigations yield the surprising conclusion that only the Court has the institutional capacity to realize the exception's benefits, whereas all the federal courts would realize its costs. That being so, we believe the most sensible means of implementing the major questions exception would be to treat it as the exclusive province of the Supreme Court. [ABSTRACT FROM AUTHOR]

The article discusses what the author refers to as the concept of U.S. executive branch fact deference as a separation of powers principle as of 2017, and it mentions the history of America's political question (PQ) doctrine and the U.S. Supreme Court's ruling in the PQ-related case Zivotofsky ex rel. Zivotofsky v. Clinton. Judicial deference, then-U.S. President Barack Obama's commencement of air strikes in Libya in 2011, and hostilities under America's War Powers Resolution are assessed.

Do legal judgments influence people's attitudes and beliefs concerning contested events? This Article builds on studies from three disciplines--law, psychology, and political science--and employs experimental methods to shed light on the impact of legal institutions on their intended audiences. The Article identifies a rising "legalization of truth" phenomenon--the adoption of legal discourse to construct and interpret facts outside the courthouse. It argues that legal truth, while providing a framework of legal terminology and conventions to analyze and understand facts, comes with a price tag: it triggers cognitive and emotional biases that frustrate efforts to disseminate controversial information and to resolve factual disputes; and it lacks the emotional appeal, participatory value, and social cues that moral expressions or other types of social truthtelling entail. To demonstrate the legalization of truth process and to measure its impact on attitudes and beliefs, this Article focuses on the practice of international fact-finding. In recent years, international fact-finding has become a dominant response to armed conflicts and political violence around the world. Lacking compulsory jurisdiction, international fact-finding bodies have adopted legal discourse, assuming that legal reports uniformly inform the relevant publics with an authoritative account of what happened and motivate domestic sanctioning of in-group offenders. This Article challenges both assumptions. Based on two survey-experiments fielded in 2013 and 2014 on representative samples of 1,000 and 2,000 U.S. nationals, respectively, as well as on an original dataset of U.N. fact-finding missions, the study demonstrates that three elements of legal discourse--binary legal judgment, "hot" legal terminology, and legal frame--harm the perceived credibility and persuasive value of fact-finding reports: the legal judgment of the fact-finding report is likely to trigger cognitive biases and belief polarization; "hot" legal terminology is likely to trigger emotional biases and reduce the perceived fairness of the report; and the legal frame appears to be less effective than moral frame in influencing attitudes on accountability. This Article concludes that international and domestic organizations should rethink their current design and practice of fact-finding bodies, acknowledge the limitations of adopting a legal discourse to interpret facts, and recognize the questionable efficacy of legal fact-finding in influencing attitudes and beliefs. Accordingly, the goals, structures, and processes of fact-finding should be reorganized, matching goals with appropriate structures and processes. By revealing the impact of the legalization of truth on people's beliefs and attitudes, this Article creates a new framework to understand the failures and successes of legal fact-finding in particular and the practice and output of legal institutions more broadly. [ABSTRACT FROM AUTHOR]

The article discusses various developments involving appellate law in Florida and appellate records in legal proceedings in the state's courts of appeal as of 2016. An article entitled "Off the Record," which was published in a 2007 issue of the journal, is addressed in relation to appellate lawyers and efforts to amend court records. The Internet's impact on American litigation is examined, along with requests for judicial notice of extra-record facts in Florida cases.

This article examines ways that mediators can ask better questions by developing a line of inquiry that facilitates insight through movement within the stages of mediation. Well-designed questions can shift perspectives, promote understanding, offer opportunities, engage participation, and create possibilities. Better questions in mediation are asked with curiosity and emotional detachment, trustworthy, emotionally intelligent, balanced and open, asked with an awareness of learning styles, creative, future focused, and unifying. [ABSTRACT FROM AUTHOR]

Along the millennia the questions about the Universe have been constantly present in human thinking. Man tried to understand the great mysteries connected to his own being as well as that of the world he lives in, elaborating concepts, theories and models to help him in the attempt to describe in an as intelligible as possible way the Great Mystery of the Universe. From the time of Democritus man had already known that everything around is made of atoms, moreover, that even the soul is made of similar type of particles. Since then, along the more than two thousand years, human thinking has gone through a long and extremely difficult process, that of knowledge, the information achieved being amazing, to this contributing science, philosophy as well as mystical experiences. At the end of this interval we have reached the stage to believe with justification that the new theories of physics are in consonance with the spiritual traditions, the oriental and occidental mystical experiences. All this huge effort of man's intelligence and spirituality has ultimately a single aim: namely, the human being's re-encounter with Universal Harmony. [ABSTRACT FROM AUTHOR]

The article provides an analysis of fact-finding under the law of armed conflict, a term which will be used in preference to international humanitarian law or the laws of war. Topics discussed include role of the International Humanitarian Fact-Finding Commission, inquiry into the downing of Malaysian airliner MH 17 over Ukraine, and call to action by the international community.

This article is concerned with the distinction between mistake of law and mistake of fact in criminal law defences. The article criticises the traditional view that distinguishes between mistake of law and mistake of fact by the criterion of perceptibility. The authors argue that the traditional view is over-inclusive and, if applied consistently, would assimilate all cases of mistake into the category of mistake of fact. The modern ‘prohibition-centred’ approach is also criticised, since it suffers from ambiguity as to what counts as ignorance of, or a mistake about the criminal prohibition or its meaning. Following a critical discussion of the rationales for the differential treatment of mistake of law, the authors propose and justify an alternative test that is based on the rationale of promoting compliance with the law. The alternative test is a two-stage test. First, the criminal prohibition must be identified as the conduct rule that derives from all signs that: (a) are made primarily for the purpose of changing the legal situation; and (b) are addressed by the state or its officials to an indefinite group of persons. Second, the two types of mistake must be distinguished as follows: (a) a mistake of law is a failure to infer that the conduct rule, which was identified in the first stage, applies to a given set of facts, where that inference can be made solely on the basis of the meaning of the conduct rule and the facts determining its temporal and territorial effect; and (b) a mistake of fact is a mistake in regard to the existence (or a lack of awareness of the existence) of the set of facts. [ABSTRACT FROM AUTHOR]

The article discusses America's probable cause legal doctrine, the Fourth Amendment to the U.S. Constitution, and the reasons why the U.S. Supreme Court should establish a bright line rule for law enforcement regarding requests for cell tower dumps which encompass all of the cellular transmissions and calls that are transmitted through a cell tower at a given time. According to the article, a specific facts standards should be required in order to law enforcement to obtain cell tower dumps.

The German practice of Richterliche Hinweispflicht is a judicial duty to give hints and feedback. In a very proactive position, the German judge asks questions of the parties designed to clarify and sharpen the key facts and issues and to give the parties a chance to correct matters that may be grounds for disposition. German judges also must ensure that the parties understand all matters that could affect the outcome of the case. In effect, the German judge' s roles may be viewed as civil servant, teacher, and activist, rather than as umpire and overseer, as in the United States. American civil jurisprudence would benefit from this German concept of the judiciary's role. Judicial participation could increase without resistance in four areas of the U.S. system: the pretrial conference, the pretrial scheduling order for discovery, the use of special masters, and the calling and questioning of witnesses. Under the American approach, although the judiciary has the right to take a more active role in proceedings, most judges fail to exercise this power other than for, perhaps, complex litigation. For example, American judges are given discretionary authority to call a pretrial conference where they can take action with respect to numerous aspects of a case. If the rules of civil procedure were amended to make mandatory both pretrial conferences and the consideration of certain topics, the American system would function more fairly and efficiently, like the German system. American judges could also increase their involvement by facilitating detailed discussions of settlement agreements for all civil cases. Recommendations must account for the difficulties inherent in extracting any procedural rule from a foreign system and trying to import it into another unique, complex system. Implementing a recommendation can be most successfully undertaken when two cultures are similar enough to be harmonized. A German legal system typically described as inquisitorial seems completely at odds with the American adversarial system and its legal history. However, recent German reforms and changes to the U.S. Federal Rules of Civil Procedure have brought closer these two systems. Both countries seek to recognize due process rights and to avoid situations where litigants will be surprised about a verdict. Additionally, American courts have moved closer to their European counterparts in the past decade by adopting a heightened pleading standard, comparable to the standards imposed by the American Law Institute ("ALI" ) and UNIDROIT. Many potential obstacles to implementation relate to judicial workload, to the legal profession's distaste for increased judicial participation, and to the judiciary's limited view of its role. These obstacles could be overcome through the increased use of special masters and magistrates and the continued use of contingency fees. Any move toward increased judicial involvement must be made cautiously in a system so fundamentally and stubbornly adversarial as is the American civil trial process. Still, such reforms can and should be pursued. [ABSTRACT FROM AUTHOR]

Standing to challenge patent validity depends not only on factual assessments about the risk of patent enforcement, but also on legal judgments about the limits of judicial power under Article III of the Constitution, the specific causes of action granted by Congress through its Article I powers, and the degree of Article II executive branch power exercised in enforcing patents. Consumer suits show the importance of the legislative power, for Congress has created two causes of action that differ dramatically in their ability to provide consumers with an effective means for challenging patents. Competitor suits show the importance of Article II considerations. Because patents are enforced largely by private parties, courts should be more willing to grant standing to plaintiffs challenging the validity of patents than to plaintiffs challenging the validity of statutes or regulations that can be enforced only by governmental actors in the executive branch. [ABSTRACT FROM AUTHOR]

The article discusses the U.S. Supreme Court's determination that empirical models and their estimations or predictions are not "findings of fact" which deserve judicial deference during the appellate stage of litigation in America, and it mentions U.S. evidence laws and the legal aspects of scientific and theoretical models. U.S. antitrust law models are examined, along with legal cases such as Comcast Corp. v. Behrend which deals with econometric models and "clear error" reviews on appeal.

In the spring of 2012, a group of young citizens brought a lawsuit alleging that the federal government had breached its fiduciary obligations under the public trust doctrine by failing to protect the atmosphere from catastrophic climate change. Alec L. v. Jackson, 863 F. Supp. 2d 11 (D.D.C. 2012). The D.C. Circuit Court affirmed the district court's dismissal of the youths' case in an unpublished memorandum opinion, holding that the federal courts have no jurisdiction to hear public trust claims because they fail to present a question arising under federal law. Alec L. v. McCarthy, 561 F. Appx. 7 (2014). Although not reviewed on appeal, a secondary basis for the district court's dismissal warrants careful analysis in light of the disagreement among legal scholars about the existence of a federal public trust and conflicting judicial decisions. The district court in Alec L. held alternatively that even if a federal public trust doctrine existed, federal statutes and regulations have displaced the public trust. With respect to the atmosphere, the Alec L. court concluded that the Clean Air Act has displaced entirely any public trust in atmospheric resources. This Article examines the application of displacement in the public trust context and argues that the application is entirely improper. The D. C. District Court's decision in Alec L. adopts the principles of displacement with no careful judicial analysis of the public trust cause of action, the applicable precedent in the federal context, or the Clean Air Act itself. Despite the fact that the court's secondary holding was not addressed on review by the circuit court, the decision in Alec L. has the potential to reach property and natural-resource issues fa r beyond the context of this case. The decision does not answer whether the Clean Air Act precludes public trust claims related to any resources damaged by climate change, such as oceans or farmlands, or only those claims that seek action to protect the atmosphere directly by demanding reductions in greenhouse gas emissions. The decision fails to address whether other federal statutes similarly displace public trust protections over the resources regulated by those statutes. Finally, the decision does not speak to whether statutory preclusion in the federal context impacts state public trust protections and, if so, to what extent. The Alec L. decision opens these questions for argument and it will likely spur litigation throughout the states and in the federal courts. Such uncertainty is wholly unnecessary in view of the existing federal case law on the public trust and the failure of the district court to engage in any in-depth displacement analysis. This Article argues that statutory displacement of the public trust in any context is inconsistent with the origins of the trust and entirely incompatible with its purposes. [ABSTRACT FROM AUTHOR]

The article discusses a split of opinion between the U.S. Courts of Appeals for the Second Circuit and Eighth Circuit regarding a likelihood of confusion legal principle which was applied in the 2014 case Lovely Skin Inc. v. Ishtar Skin Care Products LLC which deals with American trademark infringement laws, consumer confusion, and a clear error legal standard of review. Issues of fact or law are mentioned, along with skin care trademarks and the U.S. Lanham Act statute.

This Essay is a cautionary tale about what the law does to history. It uses a landmark ruling about whether scientific evidence is admissible in court to illustrate how the law renders historical evidence invisible. Frye v. United States established one of the most influential rules of evidence in the history of American law. On the matter of expert testimony, few cases are more cited than Frye. In a 669-word opinion, the D.C. Circuit Court of Appeals established the Frye test, which held sway for seven decades, remains the standard in many states, and continues to influence federal law. "Frye," like "Miranda," has the rare distinction of being a case name that has become a verb. To be "Frye'd" is to have your expert's testimony deemed inadmissible. In Frye, the expert in question was a Harvard-trained lawyer and psychologist named William Moulton Marston. Marston's name is not mentioned in the court's opinion, nor does it generally appear in textbook discussions of Frye, in the case law that has followed in its wake, or in the considerable legal scholarship on the subject. Marston is missing from Frye because the law of evidence, case law, the case method, and the conventions of legal scholarship-together, and relentlessly- hide facts. It might be said that to be Marston'd is to have your name stripped from the record. Relying on extensive archival research and on the narrative conventions of biography, this Essay reconstructs Marston's crucial role in Frye to establish facts that have been left out of the record and to argue that their absence is responsible for the many ways in which Frye has been both narrowly and broadly misunderstood. [ABSTRACT FROM AUTHOR]

The number of amicus curiae briefs filed at the Supreme Court is at an all-time high. Most observers, and even some of the Justices, believe that the best of these briefs are filed to supplement the Court 's understanding of facts. Supreme Court decisions quite often turn on generalized facts about the way the world works (Do violent video games harm children? Is a partial birth abortion ever medically necessary?). To answer these questions, the Justices are hungry for more information than the parties and the record can provide. The consensus is that amicus briefs helpfully add factual expertise to the Court 's decision making. The goal of this Article is to chip away at that conventional wisdom. The trouble with amicus facts, I argue, is that today anyone can claim to be a factual expert. With the Internet, factual information is easily found and cheaply manufactured. Moreover, the amicus curiae has evolved significantly from its origin as an impartial "friend of the court. " Facts submitted by amici are now funneled through the screen of advocacy. The result is that the Court is inundated with eleventh-hour, untested, advocacymotivated claims of factual expertise. And the Justices are listening. This Article looks at the instances in recent years when a Supreme Court Justice cites an amicus for a statement of fact. It describes the way the brief rather than the underlying factual source, is cited as authority and addresses the failure of the parties to act as an adequate check. I challenge this process as potentially infecting the Supreme Court 's decisions with unreliable evidence, and I make suggestions for ways to reform it. It is time to rethink the expertise-providing role of the Supreme Court amicus and to refashion this old tool for its new purpose. [ABSTRACT FROM AUTHOR]

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The drafters of the Rome Statute of the International Criminal Court were presented with a unique opportunity to shape the future of victim participation in international criminal legal proceedings. They were also faced with a critical dilemma - how can the International Criminal Court promote the interests of victims while simultaneously protecting the accused's fair trial rights? In many respects the final draft of the Rome Statute left the task of defining the parameters of these potentially competing interests to the Court. As a result, a body of case-law has emerged, highlighting textual ambiguities in the Rome Statute and giving rise to novel developments in sphere of victim participation. Amongst the most prominent of these developments is the recognition of the right of victims to introduce evidence at trial. However, viewing this procedure simply as a fixture of the International Criminal Court's regime of victim participation masks its true significance and potential. This article explores the idea that the Court's approach to the evidentiary procedure regulating victim participation has given birth to quasi-investigative powers that have the potential to dramatically reconfigure the future of international criminal litigation. [ABSTRACT FROM AUTHOR]