Volume 55, Issue 3

Evidence, Probability, and the Burden of Proof

This Article analyzes the probabilistic and epistemological underpinnings of the
burden of proof doctrine. We show that this doctrine is best understood as
instructing factfinders to determine which of the parties’ conflicting stories makes
most sense in terms of coherence, consilience, causality, and evidential coverage.
By applying this method, factfinders should try—and will often succeed—to
establish the truth, rather than a statistical surrogate of the truth, while securing
the appropriate allocation of the risk of error. Descriptively, we argue that this
understanding of the doctrine—the “relative plausibility theory”—corresponds to
our courts’ practice. Prescriptively, we argue that the relative-plausibility method
is operationally superior to factfinding that relies on mathematical probability.
This method aligns with people’s natural reasoning and common sense, avoids
paradoxes engendered by mathematical probability, and seamlessly integrates
with the rules of substantive law that guide individuals’ primary conduct and
determine liabilities and entitlements. We substantiate this claim by juxtaposing
the extant doctrine against two recent contributions to evidence theory: Professor
Louis Kaplow’s proposal that the burden of proof should be modified to track the
statistical distributions of harms and benefits associated with relevant primary
activities; and Professor Edward Cheng’s model that calls on factfinders to make
their decisions by using numbers instead of words. Specifically, we demonstrate
that both models suffer from serious conceptual problems and are not feasible
operationally. The extant burden of proof doctrine, we conclude, works well and
requires no far-reaching reforms.

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The Federal Reserve’s Use of International Swap Lines

This Article focuses on the U.S. Federal Reserve’s controversial practice of
loaning U.S. dollars to foreign central banks, which the foreign central banks then
turn around and loan to institutions in their jurisdictions. The Federal Reserve
does not know the identity of these recipient institutions. Nevertheless, these
loans—termed “swap lines”—provide foreign financial institutions the type of
financial stability that the U.S. Federal Reserve was created to provide for U.S.
banks during times of crises. During the financial crisis, the U.S. Federal Reserve
arranged swap lines with 14 foreign central banks for a total amount of $583
billion, making it the de facto international lender of last resort. In December
2012, the U.S. Federal Reserve once again extended the duration of its swap line

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What’s Wrong with Stereotyping?

With neither statutory proscriptions to uphold nor a clear statement of what they
were trying to do, federal judges in the United States have deemed stereotyping
actionable at law. The judges who built this cause of action moved fast, as
“stereotype” in its modern sense is relatively new. What explains stereotyping as a
legal wrong? Exploring the concept of a stereotype as presented by its coiner, the
public intellectual Walter Lippmann, this Article argues that what’s wrong with
stereotyping is unjustifiable constraint.

An answer to the question of what’s wrong delivers other answers as well. This
Article shows how current American law and legal institutions exacerbate the
problem of stereotyping as well as lessen it. It says which stereotypes fall outside
the ken of legal remediation. It distinguishes stereotyping from discrimination. It
locates the constitutional law of stereotyping. In its last Part, using examples, it
tells how law and legal institutions repair this wrong.

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Barriers to Foreclosure Prevention During the Financial Crisis

The number of modifications to distressed residential loans following the
2008 financial crisis has been disappointingly low compared to the number of
foreclosures. This raises concerns about the presence of artificial barriers to loan
modifications in situations where foreclosure should be avoidable. There are three
pressing reasons to care about what the real barriers to foreclosure prevention
are. First, foreclosures that could have been avoided inflict enormous, needless
losses on borrowers, investors, and society at large. Second, overcoming artificial
barriers to foreclosure prevention will result in loan modifications with higher
rates of success. Finally, knowing what to fix is necessary to identify the right
policy solution.

Numerous theories have been advanced for the relatively low level of
modifications, including: restrictions on loan modifications in private-label
servicing agreements, threats of lawsuits by private-label investors, servicer
compensation arrangements, the high cost of loss mitigation, accounting rules,
junior liens, and tax considerations. This Article concludes that servicer
compensation coupled with the costly nature of loan workouts, accounting
standards, and junior liens form the biggest impediments to an efficient level of
loan modifications. These factors also tilt the mix of loan modifications toward
types of modifications with higher redefault rates. Other explanations, such as
servicing agreement restrictions, tax consequences, and the threat of lawsuits, are
either not at play or are of second order importance.

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“Extraneous Prejudicial Information”: Remedying Prejudicial Juror Statements Made During Deliberations

Federal Rule of Evidence 606(b) precludes juror testimony regarding
deliberations, but contains an exception for “extraneous prejudicial information.”
A circuit split on the issue of what qualifies as “extraneous prejudicial
information” has created dramatic inconsistency in the application of the Rule.
This Note evaluates the role of juries, discusses the policy concerns on which the
Rule is based, provides historical context for how the circuit split was created,
highlights the pitfalls of the narrow interpretation of “extraneous prejudicial
information,” and makes a case for reform using state variations on the Federal
Rule. I conclude that Rule 606(b) must be amended and that this can be done
without undermining the policy concerns that have caused some circuits to be
reluctant to implement change.

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A Defense by Any Other Name: Entrapment-by-Estoppel as a Criminal Defense in Arizona

Entrapment-by-estoppel is a criminal defense founded in due process. The defense
emerged over 50 years ago from the U.S. Supreme Court and has seen steady
growth and acceptance. Arizona courts, however, have not yet recognized the
defense. The entrapment-by-estoppel defense provides an affirmative defense only
in those circumstances where a person, sincerely desirous of following the law,
breaks the law after seeking an official opinion regarding the legality of proposed
behavior. Acceptance of the defense in Arizona should be driven by both
recognition of the constitutional imperative central to the defense and by
recognition that the old legal maxim “ignorance is no excuse” becomes less
supportable in the face of the state’s continual expansion of laws and regulations.

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Training Wheels to Automobiles: Analyzing Voluntary Consent for Juvenile Drivers After Butler

In a recent decision, the Arizona Supreme Court held that the age and parental
presence of juvenile drivers are relevant, but not determinative, of whether they
voluntarily consent to a blood draw under the state’s implied consent law. Though
juveniles retain the adult privilege of driver licenses, they must now satisfy only a
juvenile standard for measuring the voluntariness of their consent. While courts
analyze all drivers’ voluntariness by a totality-of-the-circumstances standard, this
Note argues that considering age and parental presence as factors for juvenile
drivers is redundant and overly paternalistic. Such a standard blurs the policy line
between public safety and children’s rights and provides little practical guidance
to law enforcement. Notwithstanding this argument, this Note reviews the
decision’s primary authority and offers suggestions for implementing the Court’s
Butler opinion into practice.

Case Note | View PDF