Philosophical Foundations of Evidence Law presents a cross-disciplinary overview of the core issu... more Philosophical Foundations of Evidence Law presents a cross-disciplinary overview of the core issues in the theory and methodology of adjudicative evidence and factfinding, assembling the major philosophical and interdisciplinary insights that define evidence theory, as related to law, in a single book. The volume presents contemporary debates on truth, knowledge, rational beliefs, proof, argumentation, explanation, coherence, probability, economics, psychology, bias, gender, and race. It covers different theoretical approaches to legal evidence, including the Bayesian approach, scenario theory, and inference to the best explanation. The volume’s contributions come from scholars spread across three continents and twelve different countries, whose common interest is evidence theory as related to law.
This is an amicus brief urging the Supreme Court to hear the case of U.S. Air Force Major Heather... more This is an amicus brief urging the Supreme Court to hear the case of U.S. Air Force Major Heather Ortiz and her baby, who were denied legal remedies for obstetric malpractice by military doctors that left the baby with severe brain damage. The case is No. 15-488, Ortiz v. U.S. ex rel. Evans Army Community Hospital. Professors Fox and Stein urge the Court to overturn the Tenth Circuit’s holding that the federal government’s immunity against liability for intramilitary torts extends to wrongful injuries like those sustained by Major Ortiz’s baby. They argue that this holding misinterprets the immunity, misapplies the Federal Tort Claims Act (FTCA), and constitutes no less than unconstitutional sex discrimination. Fox and Stein explain:"When a civilian spouse of a serviceman receives negligent prenatal care from military doctors and delivers an injured baby as a result of that malpractice, there is no question that Feres immunity does not apply and that the baby can sue the United States under the FTCA. When military medical malpractice injures the baby of a servicewoman, this baby should be equally able to obtain redress under the FTCA. A system that would single out the civilian children of servicewomen for adverse treatment discriminates against women who serve in the armed forces.... To interpret the FTCA as the Tenth Circuit did permits discrimination between these two classes of similarly situated victims of military malpractice and violates fundamental principles of equal protection."
This Article demonstrates that all intellectual property defenses fit into three conceptual categ... more This Article demonstrates that all intellectual property defenses fit into three conceptual categories: general, individualized, and class defenses. A general defense challenges the validity of the plaintiff’s intellectual property right. When raised successfully, it annuls the plaintiff’s right and relieves not only the defendant, but also the entire world of the duty to comply with it. An individualized defense is much narrower in scope: Its successful showing defeats the specific infringement claim asserted by the plaintiff, but leaves the plaintiff’s right intact. Class defenses form an in-between category: They create an immunity zone for a certain group of users to which the defendant belongs, without nullifying the plaintiff’s right. The Article then shows that society has a special interest in the successful raising of class and general defenses. These defenses eliminate the unneeded intellectual property protection and thereby facilitate innovation, creativity, and competit...
This Comment contributes to the special volume of the Seton Hall Law Review, Experts, Inference a... more This Comment contributes to the special volume of the Seton Hall Law Review, Experts, Inference and Innocence: Symposium in Honor of the Work of D. Michael Risinger. In this Comment, I connect science-driven postconviction relief to the epistemology of disagreement — a young and rapidly developing discipline that analyzes the effects of a disagreement on the truth-value of the underlying opinion. Specifically, I argue that when a prosecution’s expert makes an inculpatory finding and then finds out that an equally informed and honest expert — an “epistemic peer” — arrived at a different opinion indicating that the defendant might be innocent, she ought to scale down her level of confidence in her own opinion. This epistemological mandate calls for granting defendants postconviction relief. In Daubert jurisdictions, which broadly admit expert testimony into evidence, courts should grant such relief as a matter of course. In jurisdictions in which expert testimony is only admissible wh...
Philosophical Foundations of Evidence Law presents a cross-disciplinary overview of the core issu... more Philosophical Foundations of Evidence Law presents a cross-disciplinary overview of the core issues in the theory and methodology of adjudicative evidence and factfinding, assembling the major philosophical and interdisciplinary insights that define evidence theory, as related to law, in a single book. The volume presents contemporary debates on truth, knowledge, rational beliefs, proof, argumentation, explanation, coherence, probability, economics, psychology, bias, gender, and race. It covers different theoretical approaches to legal evidence, including the Bayesian approach, scenario theory, and inference to the best explanation. The volume’s contributions come from scholars spread across three continents and twelve different countries, whose common interest is evidence theory as related to law.
This is an amicus brief urging the Supreme Court to hear the case of U.S. Air Force Major Heather... more This is an amicus brief urging the Supreme Court to hear the case of U.S. Air Force Major Heather Ortiz and her baby, who were denied legal remedies for obstetric malpractice by military doctors that left the baby with severe brain damage. The case is No. 15-488, Ortiz v. U.S. ex rel. Evans Army Community Hospital. Professors Fox and Stein urge the Court to overturn the Tenth Circuit’s holding that the federal government’s immunity against liability for intramilitary torts extends to wrongful injuries like those sustained by Major Ortiz’s baby. They argue that this holding misinterprets the immunity, misapplies the Federal Tort Claims Act (FTCA), and constitutes no less than unconstitutional sex discrimination. Fox and Stein explain:"When a civilian spouse of a serviceman receives negligent prenatal care from military doctors and delivers an injured baby as a result of that malpractice, there is no question that Feres immunity does not apply and that the baby can sue the United States under the FTCA. When military medical malpractice injures the baby of a servicewoman, this baby should be equally able to obtain redress under the FTCA. A system that would single out the civilian children of servicewomen for adverse treatment discriminates against women who serve in the armed forces.... To interpret the FTCA as the Tenth Circuit did permits discrimination between these two classes of similarly situated victims of military malpractice and violates fundamental principles of equal protection."
This Article demonstrates that all intellectual property defenses fit into three conceptual categ... more This Article demonstrates that all intellectual property defenses fit into three conceptual categories: general, individualized, and class defenses. A general defense challenges the validity of the plaintiff’s intellectual property right. When raised successfully, it annuls the plaintiff’s right and relieves not only the defendant, but also the entire world of the duty to comply with it. An individualized defense is much narrower in scope: Its successful showing defeats the specific infringement claim asserted by the plaintiff, but leaves the plaintiff’s right intact. Class defenses form an in-between category: They create an immunity zone for a certain group of users to which the defendant belongs, without nullifying the plaintiff’s right. The Article then shows that society has a special interest in the successful raising of class and general defenses. These defenses eliminate the unneeded intellectual property protection and thereby facilitate innovation, creativity, and competit...
This Comment contributes to the special volume of the Seton Hall Law Review, Experts, Inference a... more This Comment contributes to the special volume of the Seton Hall Law Review, Experts, Inference and Innocence: Symposium in Honor of the Work of D. Michael Risinger. In this Comment, I connect science-driven postconviction relief to the epistemology of disagreement — a young and rapidly developing discipline that analyzes the effects of a disagreement on the truth-value of the underlying opinion. Specifically, I argue that when a prosecution’s expert makes an inculpatory finding and then finds out that an equally informed and honest expert — an “epistemic peer” — arrived at a different opinion indicating that the defendant might be innocent, she ought to scale down her level of confidence in her own opinion. This epistemological mandate calls for granting defendants postconviction relief. In Daubert jurisdictions, which broadly admit expert testimony into evidence, courts should grant such relief as a matter of course. In jurisdictions in which expert testimony is only admissible wh...
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