first-year law review

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Judicial Notice of Scientific Principle and Legislative Facts

Our discussion today focused on two cases, State v. Graham and Muller v. Oregon. State v. Graham focused on taking judicial notice of a scientific principle. In this case, Graham was convicted of going 65 mph in a 50 mph zone. He was caught by troopers using radar guns. The question on appeal was whether radar, as a device for detecting speed, a scientific principle so soundly established as to be accepted by the courts. The court held that the device, when maintained and operating within specs, measures speed accurately, and that it should be used.


Judicial notice of a scientific principle is hard because Rule 201 doesn’t tell us when a court can take notice of a scientific principle. The old standard was the Fry test which said scientific proof is admissible only if it’s generally accepted as valid by the scientific community. You’d use experts to establish the community’s view, then eventually courts would just take judicial notice of the principle. This worked until scientific advances outpaced the test. Now, before a jury can consider scientific proof, the court must determine it’s reliable, then the jury can determine what weight to give it. This protects the jury from unreliable evidence, but also allows the principle in.


The second case we looked at was Muller v. Oregon in which Justice Brandeis, before he was a justice, submitted a brief which was basically one page with a forty-five page footnote. The case was about limiting the hours a woman could work in certain industries, and the footnote included statutes and sociological research that backed that policy. The legislation referred to aren’t technically authorities, but they do represent the widespread belief that something is factual. Judicial notice is taken of all matters of general knowledge. Legislative facts are necessary in the judicial process, especially in interpreting the Constitution or other laws. When called upon to interpret a statute, courts should understand the nature of the evil the legislature was trying to correct.


The problem for judges using legislative facts is that socio-economic facts aren’t in law books. Judges can get those facts and the legislative goal however they need to. In his brief, Brandeis didn’t have to establish truth, he just said that the legislation and data support the need and the conclusion that there’s a rational basis. Again, Rule 201 doesn’t say anything on legislative facts. The standard for taking judicial notice doesn’t exist so as to provide courts with flexibility.


August 31, 2007 Posted by | Evidence | Leave a comment

Alternatives to Formal Proof: Judicial Notice

In court, some proof can be taken for granted. Ordinary language certain is taken for granted, as are ordinary ways of thinking. Additionally, judicial notice, which is a short cut for doing away with the formal necessity for evidence because there is no real necessity for it, can be taken of something commonly known. In Varcoe v. Lee, the defendant argued that the prosecution had not entered evidence that the place he hit a girl was a business district. This is important because there was a statute saying one could only drive 15 mph in a business district and that failing to do so made one liable for negligence as a matter of law. The justices said the requirements for judicial notice are: that it be well established and authoritatively settles, be practically indisputable, and that this common, general, and certain knowledge exist in the particular jurisdiction. According to Rule 201 of the FRE, judicial notice can be taken: When it’s generally known within the jurisdiction, and when it’s capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

August 30, 2007 Posted by | Evidence | Leave a comment

Dead Hand Control

Let’s deal with the problem of dead hand control. The question is, To what extent should a person be able to use wealth to influence behavior after death? The reason this is a problem is because in the United States, courts don’t substitute their own judgment for the decedent’s, but it seems like there has to be some limit. In the Restatement 3d on Property, it says, “The donor has the freedom of disposition, and pretty much anything goes as long as the donative transfer doesn’t interfere with spousal rights, creditors’ rights, unreasonable restraints on alienation or marriage, provide for promoting separation or divorce, impermissible racial or other categoric restrictions, provisions encouraging illegal activity, and the rules against perpetuities and accumulations.” So there are several limits on the decedent’s right to dispose of his property as he sees fit.


An interesting case we read was Shapira v. Union National Bank. Here, Dr. Shapira said in his will that his each of his sons must marry a Jewish woman, both of whose parents are Jewish. One of the sons, Dan, took exception to that provision and challenged it. The question in this case was whether the decedent’s provision was constitutional or against public policy. The court held that the right to receive property by will is a creature of the law, and is not a natural right or one guaranteed or protected by either the Ohio or the United States constitution. In Ohio, a testator may legally disinherit his children. Dan argued that enforcing the provision would go against the precedent set in Shelley v. Kraemer that judicial enforcement is the same as state action which restricts the right to marry. Provisions such as Dr. Shapira’s aren’t state action because Dan’s right isn’t restricted, he can marry whomever he wants, he just won’t get the money. Thus, the state isn’t restricting, the dad is, even if the state enforces the will. It is also not contrary to public policy because gifts conditioned on a beneficiary marrying within a particular class or religion constitute only a partial restraint on marriage, which is reasonable and valid and not against policy.


Restatement 2d on Property says a restraint to induce a person to marry within a religious faith is valid if and only if under the circumstances, the restraint doesn’t unreasonably limit the tranferee’s opportunity to marry. However, a will or trust provision is ordinarily invalid if it is intended or tends to encourage disruption of a family relationship.

August 30, 2007 Posted by | Wills & Estates | 1 Comment

The Right to Pass On Property: A Civil or Natural Right?

There are two ways at looking at devising property: that it’s a natural right or that it’s a civil right. Blackstone and Jefferson both thought devising property was a civil right because it’s regulated by the government. Locke, however, believed that devising property is a natural right because taking care of our descendants is a God-planted desire and devising property is a way to do that.


In the United States, devising property was viewed as a civil right until 1987 when the Supreme Court decided the landmark case of Hodel v. Irving. In the 19th century, Congress said Indian land would pass to the owners’ children. This resulted in severely fractured interests. To solve the problem, Congress said that such lands would escheat to the tribe. The issue was whether the escheat provision is a taking without just compensation. The Court held that the right to pass on valuable propety to one’s heirs is a valuable right, and the complete abolition of both the descent and devise of a particular class of property may be a taking because the value of the interests, though nominal, isn’t valueless. The right to pass on property is part of the bundle of sticks. Descent and devise may be regulated, but not abolished.


This represented a shift to the natural view of devising property. Note that this doesn’t concern the right to inherit, only the right to devise. Thus, if my parents wrote me out of their will, I wouldn’t be able to assert a right to inherit.

August 27, 2007 Posted by | Wills & Estates | Leave a comment

Starting a new year

Welcome to all you first years. Hopefully some of this stuff helps. You’ll see advanced topics too since I use this as a tool for reviewing and I’m just going to keep everything here.

August 27, 2007 Posted by | Uncategorized | Leave a comment