Faculty Bibliography
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Crawford v. Washington, 542 U.S. 36 (2004), is the latest in a series of misconceived confrontation holdings. Its 'testimonial' hearsay standard has created endless confusion and done nothing to protect the rights of defendants nor the needs of fair jury trials. Constitutional confrontation requires legal sufficiency of proof. A crime may not be proved by hearsay alone. This is not a rule about the admissibility of hearsay evidence. It is a rule responsive to the injustice done to Sir Walter Raleigh mandating proof of criminal guilt by live-witness, personal-knowledge testimony sufficient to warrant conviction. Overruling Crawford and replacing it with a proper judicial understanding of the Sixth Amendment will rationalize confrontation law and restore the centrality of jury process to American criminal justice.
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Peter L. Murray, Eric Green & Charles R. Nesson, Problems, Cases and Materials on Evidence (Aspen Law & Bus. 4th ed. 2017).
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Deliberate emotionally charged issues with your peers online without fear or rancor, and experience a system by which a jury, or any community, can move from a place of deep division to agreement and action.
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The public domain is the sovereign space of all citizens of the world. Like the air we breathe, it is free for all people to use, without restriction, no rights reserved. Our public ownership of this domain of knowledge should be understood as a fundamental human right to access our shared knowledge, the use of which is not the result of a grant by any specific government. In this book, the members of Communia not only articulates this positive conception of our public domain, but also seek to make the European public domain actionable.
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The Judicial Conference of the United States has a longstanding policy prohibiting television and other electronic media coverage of federal district court proceedings. The public is losing a great deal from being deprived of easy access to the proceedings in its courts. Despite the top-down command to ban cameras, bottom-up resistance seems to be gaining momentum in the district and circuit courts. Internet access to gavel-to-gavel digital recording of public court proceedings would allow all who are interested to follow the proceedings. Those who would deny the public that access ought at least to bear the burden of rationally explaining why the public should be excluded from what purport to be public trials.
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This article is a practical, often ethnographically based, argument for the current value and future potential of virtual worlds in education that attempts to specifically address the concerns and reservations of the many thoughtful educators and observers who are not yet convinced. It relates our experience teaching the course `CyberOne: Law in the Court of Public Opinion` at Harvard and in Second Life and the principles for successful teaching in a virtual environment that we derived from it: (a) use the technology for what it is good for and not for what it does not do well, (b) seek advantages in what appear to be limitations, and (c) where new capabilities are offered, find ways to use them.
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This panel discussion took place as part of a symposium hosted by Regent University Law Review on October 14, 2006, at Regent University School of Law.
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By giving lawyers access to juror demographic profiles, our changing information environment may give further impetus to the demise of peremptory challenges.
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Lawrence Lessig, Jonathan L. Zittrain, Charles R. Nesson, William F. Fisher & Yochai Benkler, Internet Law (Found. Press 2002).
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Charles R. Nesson, the Weld Professor of Law at Harvard Law School, moderated a panel of journalists who spoke about the job of asking critical questions in the aftermath of the attacks on September 11. Nesson directs the Berkman Center for Internet and Society at the law school and for many years worked with the late CBS News producer Fred Friendly in the PBS series “Media and Society.” What follows are edited remarks of the journalists and moderator.
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The article reports on the threats to privacy. With the advent of Internet and its connectivity, an all-encompassing surveillance network may compromise the public's privacy. The efficient technologies of data processing and digital surveillance devices are cameras, and microphones. Simson Garfinkel and David Brin suggests the breadth and immediacy of technology's right to privacy. In "Database Nation," Garfinkel describes a thwarted effort in the late sixties to establish a massive central database of citizen information to be administered and controlled by the U.S. government. In Brin's "The Transparent Society," the dimension of threatened privacy loss by posing a hypothetical question based on the assumption that pervasive surveillance is coming.
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The model of university as producer of knowledge-as-product-for-sale is a closed one. Knowledge is treated as property to be copyrighted, patented, classified, licensed, and litigated. Under this closed model, creative work cannot progress without negotiations about license fees (the ambit of legal "fair use" at a minimum). As faculty become work-for-hire, money becomes the currency of the campus, and legality the dominant feature of relationship. Under this model, the nature of Harvard will change fundamentally - for the worse, I think. The community of scholars at the heart of the academy trades riches for a comfortable secure environment in which to think, research, and teach. This community, comprised of intellectuals who do not hold money paramount, will be oppressed by a commercial/legal environment. The Berkman Center aspires to demonstrate a different model - open IT, we call it. We encourage cooperative work dedicated to the open domain. Faculty, students, staff, alumni, relatives, and friends are permitted and encouraged (though not required) to work together in the public interest. Intellectual community and creative process is our product, knowledge the by-product. This approach galvanizes spirit and produces educational works of great distinction and wide public utility. Furthermore, this model maintains the community of scholars while avoiding the meanness of money and licenses. It will enhance the prestige of the institutions that contribute and become part of it. But there are questions.
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The Bridge is divided into two major parts: a six-unit series on legal reasoning, and a series of modules on American Legal Theory, divided into six "tracks" representing important schools of thought. The series on legal reasoning should be approached in sequence. The materials on legal theory are more modular, and can be used in numerous ways.
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This article discusses the fifth amendment privilege against self-incrimination. It analyzes the difference between the drawing inferences from taking fifth amendment privileges in the case of parties to litigation and witnesses, and explores the no-inference rule in both cases.
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Today millions of technologically empowered individuals are able to participate freely in international transactions and enterprises, social and economic. These activities are governed by national and local laws designed for simpler times and now challenged by a new technological and market environment as well as by the practicalities and politics of enforcement across national boundaries.Borders in Cyberspace investigates issues arising from national differences in law, public policy, and social and cultural values as these differences are reformulated in the emerging global information infrastructure. The contributions include detailed analyses of some of the most visible issues, including intellectual property, security, privacy, and censorship.
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Chief Justice Earl Warren was a great sports fan and watched a lot of sports on TV. Perhaps for that reason he was appalled at the idea of cameras in the courtroom. Thirty years ago, he brought the Supreme Court within one vote of declaring televised criminal trials to be unconstitutional. The Hollywoodization of trials would be their undoing, he wrote, because the search for truth would be subverted into the search for ratings. He worried that trial participants would behave differently under the glare of publicity, and that those watching trials on TV would get a distorted view of the American justice system. They might even be driven to doubt it.
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This article analyzes the role of hearsay in criminal justice proceedings and advocates for the court to adopt an active role in controlling the introduction of hearsay, to ensure that only credible hearsay is admitted into evidence. It considers the impact that hearsay has on the defendant’s constitutional right of confrontation, discussing in what circumstances corroboration and testing will allow the defendant’s rights and societal needs of justice and fairness to be satisfied.
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The O. J. Simpson case is likely to bring about changes in court procedures, particularly in regard to televised trials. Trials and judges are advised to adjust to technology, not to fend it off.
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Presents a letter to the editor in response to an article about Harvard Law School professor Charles Ogletree.
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Charles R. Nesson, Incentives to Spoliate Evidence in Civil Litigation: The Need for Vigorous Judicial Action, 13 Cardozo L. Rev. 793 (1991).
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Eric D. Green & Charles R. Nesson, Federal Rules of Evidence: With Selected Legislative History and New Cases and Problems (1988).
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Eric D. Green & Charles R. Nesson, Federal Rules of Evidence: With Selected Legislative History and New Cases and Problems (1988).
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Eric D. Green & Charles R. Nesson, Federal Rules of Evidence: With Selected Legislative History and New Cases and Problems (1986).
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Charles Nesson, A Needed Verdict: Guilty but Insane, N.Y. Times, July 1, 1982, at A19.
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Permissive inferences have long served to assist state and federal prosecutors by authorizing juries to infer an essential element of a crime from proof of some other fact commonly associated with it. Professor Nesson argues, however, that this type of presumption accomplishes the goals of its legislative authors by necessarily subverting those aspects of the criminal adjudication system that tend most to secure public respect for trial verdicts. To avoid this result, he proposes alternative ways of achieving the legitimate purposes behind permissive inferences, with particular emphasis on the pending revision of the Federal Criminal Code.
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Charles Nesson, A Step Toward an Autocratic State, Trial Mag., Sept. 1, 1973, at 27.
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