Regulating the Science of Forensic Evidence: A Broken System Requires a New Federal Agency

Jessica D. Gabel & Ashley D. Champion

90 Texas L. Rev. See Also 19

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Professor Gabel and Ms. Champion agree with Mr. Goldstein’s argument that serious validity and reliability problems plague forensic science, but, using the recent Troy Davis case in Georgia as an illustration, they argue for federal rather than state oversight. Gabel and Champion assert that many states lack the funding to construct an adequate system and that the fragmentation caused by different state systems would be a significant impediment to reform. They suggest a federal agency that, like the Environmental Protection Agency, would set minimum standards but allow states to experiment with enhanced regulation.

Forensic Science Reform

Paul C. Giannelli

90 Texas L. Rev. See Also 29

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Professor Giannelli agrees with Mr. Goldstein’s argument that crime laboratories would be better regulated by the states rather than federal government.  He uses the recent controversies surrounding the Cameron Todd Willingham investigation in Texas and an investigation following a postconviction finding of innocence in North Carolina.

However, Giannelli argues that states are ill-equipped to tackle one major problem in forensic science: the lack of foundational research. Giannelli points out that many forensic science disciplines have scant research to validate their techniques and contends that states do not have the resources or capability to conduct the necessary research.

The Dual Message of Moral Rights

Lior Zemer

90 Texas L. Rev. See Also 125

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Professor Zemer responds to Ms. Mills’s critique of moral rights, including the right of integrity, by arguing that protection of the right of integrity strengthens authorship morality.  He observes that the “bundle of sticks” conception of property is not absolute and allows for the division of rights to a particular piece of property.  Similarly, copyright law allows for division such that certain rights, including the right of integrity, can be protected.  Finally, Professor Zemer argues that there is intrinsic value for artists in the artistic enterprise that is unaddressed by Ms. Mills’s critique of moral rights.  The value also extends to the public through the protection of art and its creative message.

Conceptual Clarity and Necessary Muddles

Michael D. Green & William C. Powers

90 Texas L. Rev. See Also 41

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Professor Michael D. Green and President William C. Powers, Jr., the Co-Reporters of Restatement (Third) of Torts, describe the development of indivisible injury jurisprudence and its evolution in the Restatements. Professor Green and President Powers address Mr. Raupp’s arguments regarding the narrowing of the doctrine, but their analysis leads to a different conclusion, namely that “Apportionment in the face of evidential uncertainty is conceptually messy and does not nourish our appetite for logical ordering.  Yet our judgment is that the alternative is worse, so the law should make this accommodation, appreciating the trade-offs involved.”

Two Cheers for Procedural Review of Guidance Documents

David L. Franklin

90 Texas L. Rev. See Also 111

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Professor Franklin responds to Professor Seidenfeld’s argument in favor of substantive review of guidance documents by raising questions as to whether substantive review is a workable alternative.  Professor Franklin argues that a concern with consistency does not justify giving up the enterprise of procedural review, arguing that Professor Seidentfeld’s argument about the irrelevance of procedural invalidation of guidance documents is overstated.  Next, Professor Franklin acknowledges that he does not object to the proposal to loosen the doctrines of finality and ripeness but questions the effectiveness of the review process.  It is unclear to Professor Franklin how a court would determine which objections and alternatives must be addressed lest the guidance be declared substantively invalid.  As such, Professor Franklin views Professor Seidenfeld’s treatment of the interaction between substantive review and notice and comment as understated.

Professor Franklin concludes, “Preenforcement invalidation of guidance documents for failure to undergo notice and comment is, and should be, the exception rather than the rule.”  Due to the risk of agencies using guidance documents to change law without input from the public, “a persuasive case for abandoning procedural review has yet to be made.”

Originalism at the Right Time?

Josh Blackman

90 Texas L. Rev. See Also 269

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Professor Blackman critiques the originalist methodology employed by Calabresi and Rickert.