VOLUME 108 FIRST IMPRESSIONS
COMMENTARIES

"False But Highly Persuasive": How Wrong Were the Probability Estimates in McDaniel v. Brown?

David H. Kaye

In McDaniel v. Brown, the Supreme Court will review the use of DNA evidence in a 1994 trial for sexual assault and attempted murder. The Court granted certiorari to consider two procedural issuesthe standard of federal postconviction review of a state jury verdict for sufficiency of the evidence, and the district court's decision to allow the prisoner to supplement the record of trials, appeals, and state postconviction proceedings with a geneticist's letter twelve years after the trial. The letter from Laurence Mueller, a professor at the University of California at Irvine, identified two obvious mistakes in the state's expert testimony.

This essay clarifies the nature and extent of the errors in this evidence in Brown. One might think that the expert's letter, the opinions of the lower courts, and the briefsincluding one from "20 Scholars of Forensic Evidence"would have done this, but there is more to be said.

 

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Same-Sex Marriage in the Heartland: The Case for Legislative Minimalism in Crafting Religious Exemptions

Ian C. Bartrum
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In Search of Justice: Increasing the Risk of Business with State Sponsors of Terror

Gabriel C. Lajeunesse
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When "Good" Corporate Governance Makes "Bad" (Financial) Firms: The Global Crisis and the Limits of Private Law

Nicholas Calcina Howson
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Gina's Genotypes

David H. Kaye
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Welcoming Women: Recent Changes in U.S. Asylum Law

Jillian Blake
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The Overlooked Significance of Arizona's New Immigration Law

Rick Su
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Redemption Song: Graham v. Florida and the Evolving Eighth Amendment Jurisprudence

Robert Smith & G. Ben Cohen
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The Case for Semi-Strong-Form Corporate Scienter in Securities Fraud Actions

Paul B. Maslo
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RESPONSES

Dilution of Liability and Multiple Tortfeasors in the Context of Liability for Unrequested Precautions

Assaf Jacob

A Response to Ariel Porat, Private Production of Public Goods: Liability for Unrequested Benefits, 108 Mich. L. Rev. (2009).

One of the more intriguing questions in tort law is the case of joint and several tortfeasors and the dilution-of-liability puzzle. When harm materializes and there are multiple potential tortfeasors, the law tends to limit the number of joint tortfeasors, focusing the final burden on a small number of actors. This limitation is achieved by several legal mechanisms, such as a no duty rule, a narrow interpretation of negligence, a restrictive implementation of the causal link (be it the but for test, the proximate cause test or the rule of intervening cause test), and a doctrine of remoteness of damage. Thus, in the typical accident example, if A, B, and C inflicted risk upon D, often times the tort system will filter out A and B and leave only C to carry the final burden. Ariel Porat's outline of the Expanded Duty of Restitution in his article, Private Production of Public Goods: Liability for Unrequested Benefits, provides an interesting and provocative solution to the dilution of liability puzzle.

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Insufficient Analysis of Insufficient Activity

Kenneth S. Abraham
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Another Theory of Insufficient Activity Levels

Mark Grady
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Activity Levels Under the Hand Formula: A Comment on Gilo and Guttel

Richard A. Epstein
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Constitutional Interpretation and Judicial Review: A Case of the Tail Wagging the Dog

Michael Halley
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Insufficient Activity and Tort Liability: A Rejoinder

David Gilo & Ehud Guttel
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Freedom and Equality on the Installment Plan

Michael Halley
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