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Showing papers in "Albany law review in 2018"


Journal ArticleDOI
TL;DR: In this article, a qualitative content analysis of Delaware cases was conducted to test the corporate governance benefits of board gender diversity, and the findings suggest that gender diversity might help boards overcome some impediments to effective functioning in certain cases but also suggest other complementary solutions to make boards more effective.
Abstract: Gender diversity on company boards is becoming an increasingly important issue. The theoretical bases for the desirability of gender diversity regulations can be understood under three categories i.e. social benefits; business benefits; and corporate governance benefits. Since corporate governance is the main task of the board of directors, the corporate governance case for board gender diversity needs to be developed further. This article tests the corporate governance benefits of board gender diversity by conducting a qualitative content analysis of Delaware cases. The observations from this study are then analysed against the quantitative and qualitative literature on the about the corporate governance benefits of board gender diversity. The findings suggest that gender diversity might help boards overcome some impediments to effective functioning in certain cases but also suggests other complementary solutions to make boards more effective. The article thus, builds the corporate governance case for board gender diversity, but also sets out its limits.

5 citations


Journal Article
TL;DR: The state of Texas is the undisputed leader in making use of the death penalty as mentioned in this paper, with 546 executions in the last four decades through 2017, and has carried out almost five times as many executions as Virginia, the next leading state with 113 executions during the modern era of capital punishment.
Abstract: Texas is this country’s undisputed leader in making use of the death penalty. With 546 executions in the last four decades through 2017, Texas has carried out almost five times as many as Virginia, the next leading state with 113, and has accounted for more than onethird of the nation’s total during the modern era of capital punishment.1 Roughly 250 prisoners were awaiting a date with the executioner in the state as 2017 dawned, comprising the country’s third largest death row.2 The abundant executions and death sentences are attributable in part to the state’s sizeable population. With nearly 28 million residents,3 Texas is the nation’s second most populous state,4 with a commensurate amount of crime including a large number of murders committed annually.5 The state thus has many opportunities to impose and carry out death sentences.6

5 citations


Journal Article
TL;DR: A systematic and comprehensive examination of "other" types of error in friction ridge analysis and how they can, and have, contributed to miscarriages of justice is presented in this paper.
Abstract: Much of what has been written about the role of friction ridge (“fingerprint”) evidence and miscarriages of justice has focused, understandably, on erroneous identifications, cases in which a crime scene print is erroneously attributed to a suspect (or, more rarely, a victim). This Article undertakes a systematic and comprehensive examination of “other” types of error in friction ridge analysis and how they can, and have, contributed to miscarriages of justice. These errors include “missed identifications” and well as “missed exclusions.” The Article begins by systematically laying out a new typology of fingerprint errors, resulting in more than 15 different error types. It then discusses each of the major error types, listing publicly exposed errors of that type if there are any, for a total of more than 40 cases. We illustrate how each error type can deprive a defendant of evidence probative of innocence. The Article then goes on to discuss the scientific literature on friction ridge analysis and the ways in which that literature suggests that these “other” errors may be common, and perhaps even expected, given standard procedures in friction ridge analysis. The final section of the Article discusses the issue of post-conviction database searching of fingerprint (and other forensic) databases, akin to post-conviction searching of DNA databases. We find that convicts’ have a right to post-conviction database searching for forensic evidence other than DNA in only a few states. And yet, post-conviction database searches have exonerated convicts in those states. We argue that there is no persuasive reason that the right to post-conviction DNA testing should not be extended to post-conviction fingerprint (and other forensic) databases searching.

4 citations



Journal Article
TL;DR: In this paper, the authors argue that there is a need to increase validity and reliability of forensic science in the criminal justice system through a collaborative approach, and they also discuss the broader impact of forensic reform to protect the integrity of our justice system.
Abstract: In this article, we argue that there is a need to increase validity and reliability of forensic science in the criminal justice system through a collaborative approach. In part II, we explain the legal rules governing the admissibility of scientific evidence in criminal cases and the evolution of that law over time. Parts III and IV describe a 2016 report by the President’s Council of Advisors on Science and Technology (“PCAST”), which analyzed the methodology and validity of many “pattern identification” or “feature-comparison” methods. PCAST asked whether DNA analysis, bite marks, latent fingerprints, firearms identification, and footwear analysis are supported by reproducible research, and is, therefore, reliable evidence. PCAST concluded that many of these forensic methods lack validation studies and need to be addressed. The PCAST Report followed an earlier report by the National Academy of Sciences (“NAS”) in 2009, which enumerated the problems in the forensic science community and the need for significant improvement. In Part V, we address the opposition to the PCAST Report from the National Association of District Attorneys, United States Attorney General, and FBI, along with PCAST’s response to that opposition. Part VI focuses on the promise of the PCAST Report, in particular how implementing its recommendations could help reduce the numbers of wrongful convictions, massive case reviews, and crime lab scandals. We also discuss the broader impact of forensic reform to protect the integrity of our justice system. Unfortunately, as we discuss in Parts VII and VIII, there has been little change in the law to prevent the admissibility of faulty forensics and in fact, courts continue to regularly admit questionable and invalid forensic science into evidence. We explore the reasons for the lack of change, including our reliance on past precedent that makes the legal system a poor venue for forensic reform with a more concerted effort. In Part IX, we note that the likelihood of change coming from the federal government is low as the Obama Administration failed to implement any plan for change after the PCAST Report and the current Administration announced last April that it would not renew the National Commission on Forensic Science. In Parts X and XI, we discuss the need for further collaboration between scientists and lawyers/judges, and we propose a specialized role of forensic resource counsel to help facilitate that collaboration.

2 citations


Journal Article
TL;DR: Shaken Baby Syndrome (“SBS”) is a controversial medical diagnosis that has led to wrongful convictions and out of about 2,000 cases where defendants were charged with SBS, in 213 cases “charges were dropped or dismissed or convictions were overturned” when secondary analysis showed that the victim has suffered from something other than SBS.
Abstract: Shaken Baby Syndrome (“SBS”) is a controversial medical diagnosis that has led to wrongful convictions. Since 2001, there have been about 2,000 cases where defendants were charged with SBS1 and out of those, in 213 cases “charges were dropped or dismissed or convictions were overturned” when secondary analysis showed that the victim has suffered from something other than SBS.2 One of the primary causes for misdiagnosis of SBS, which potentially leads to a wrongful conviction, is the misconception of signs and symptoms which, when present all at once, are considered to fall under the umbrella of SBS.3 Often, when a defendant is suspected of shaking the infant to death, the medical expert checks whether the victim has the following three symptoms, also known as the “classic ‘triad’: retinal hemorrhages (bleeding of the inside surface of the back of the eye); subdural hemorrhages (bleeding between the hard outer layer and the spongy membranes that surround the brain); and cerebral edema (brain swelling).”4 SBS, as a medical diagnosis, was first discovered by Norman Guthkelch, a pediatric neurosurgeon, who first discussed it in his 1971 journal article studying subdural hematomas and how they can

1 citations


Journal Article
TL;DR: In this paper, the DAUBERT reliability test was proposed as an alternative to the traditional FRYE general acceptance test, and the authors argued that the proposed test reflects sound scientific methodology and represents a synthesis of the governing statutes and cases.
Abstract: This article is a contribution to a forthcoming symposium on wrongful convictions. In some cases, a wrongful conviction is virtually unavoidable. The empirical data demonstrating the invalidity of the expert's technique or theory may become available only after the conviction. However, in other cases, the courts can minimize the risk of a wrongful conviction by applying a rigorous admissibility test. Part I of this article considers -- and then rejects -- two possible admissibility tests. One is an extreme version of the relevancy test allowing the admission of testimony based on a technique or theory so long as one qualified expert vouches for the technique or theory. The second is the traditional FRYE general acceptance test. Both tests provide inadequate assurance against wrongful conviction because they demand nothing more than ipse dixit -- either that of an individual expert or the collective ipse dixit of a substantial majority of the specialists in a field. Both approaches represent the antithesis of scientific methodology. Part II of the article proposes a refined version of the DAUBERT reliability test. After stating the proposed test, the article dissects the test and explains each test component. Part II argues that the proposed test reflects sound scientific methodology and represents a synthesis of the governing statutes and cases. Finally, Part III explores both the utility of the proposed test and its limitations. As Part III establishes, the satisfaction of the proposed test guarantees neither the admissibility of the expert's testimony nor its legal sufficiency to support a conviction. Most importantly, Part III underscores that the use of a sound admissibility test does not preclude the possibility that later scientific research will discredit the technique or theory relied on at the time of the earlier trial. Vigilance against wrongful convictions must be a both/and proposition: We must not only apply an exacting test to assess the technique or theory at the time of the initial proffer of the evidence, but we also have to revise the postconviction relief statutes to correct miscarriages of justices that are exposed only by later scientific investigation.

1 citations


Journal Article
TL;DR: The use of unmanned aerial vehicles (UAVs) for the targeted killing of terrorist suspects has garnered media attention as mentioned in this paper, but UAVs need not be equipped with weapons.
Abstract: Unmanned drones have proven an integral part of the fight against terrorism overseas. The Trump, Obama, and Bush Administrations have relied upon drones to target extremists, particularly in Pakistan and Yemen.2 “Drone strikes” involving the targeted killing of terrorist suspects have garnered media attention,3 but drones need not be equipped with weapons. Many drones, used for reconnaissance purposes, are outfitted with instant-feed cameras, infrared scanners, and telescopes.4 The military has used unmanned aerial vehicles (“UAVs,” or simply “drones”) for reconnaissance

1 citations


Journal Article
TL;DR: In this article, a discussion of the factors leading to the current flood of fakes in the antiquities market, an explanation of why it can be so difficult to tell when an artifact is fake, and a summary of the recognized harms caused by these fakes.
Abstract: The article discusses what I will call “official fakes” – fakes mistakenly treated as genuine antiquities by governmental authorities - are costly to many branches of government. They waste authorities’ time, resources, cash, and credibility. Fakes also lead to basic problems of justice: people who intend to sell looted antiquities are either under-prosecuted after it is discovered that they were unwittingly dealing in fakes, or over-prosecuted if this discovery is not made, and the government continues to assume that the accused looter’s stock of fakes is actually genuine. The article begins with a discussion of the factors leading to the current flood of fakes in the antiquities market, an explanation of why it can be so difficult to tell when an artifact is fake, and a summary of the recognized harms caused by these fakes. I then describe categories of “official fakes,” giving case studies and analysis of how they cause waste. The article then summarizes the current failure of the treatment of fakes in American law to reduce this waste, and ends by proposing some policy changes necessary to stem the governmental losses caused by “official fakes.”

1 citations