Reviewing the law reviews.

• Author: Youngdale, Elizabeth M.

Law Review Highlights:

The advent of new technology always challenges the law in its application where those changes come in contact with once familiar areas of law. For instance, developments in medical equipment technology present questions of how the outputs from those devices will interact with rules of evidence. X-rays and some brain imaging methods have found general acceptance in the court room, but as advancements continue to be made, questions arise as to what types of evidence will be acceptable under the current rules of evidence, or whether the rules need to be changed to accommodate such new technologies. Two articles address these concerns in regards to modern radiology images and continuing developments in brain imaging.

In his article, FMRI and BF Meet FRE: Brain Imaging and the Federal Rules of Evidence, Mark Pettit looks at current methods of brain imaging and considers how these medical tests have been used in different types of cases. (1) He evaluates the admissibility of these images under current tests of scientific evidence under the Federal Rules of Evidence and discusses the history of attempts to introduce brain imaging evidence into courtrooms. In addition to looking at how this technology is used in civil suits, the author examines how brain imaging is moving into the arena of lie (or truth) detecting in some criminal cases. Finally, he considers some of the issues facing judges when parties move to enter brain imaging evidence into the record and how those might play into dealing with new technology.

A second article, entitled Not Just "X-Rays" Today." Recommendations for Admissibility of Modern Radiology Images, considers how the changes in x-ray type technology, which is moving from film-based radiography to digital imaging, are challenging application of evidentiary rules. (2) The author, Anthony R. Bendetto, looks primarily at aspects of current radiology images that make the rules of evidence as they are applied today increasingly unworkable. The article then suggests different ways these new radiology images can be evaluated before they are submitted into evidence. Interestingly, the author does not suggest changes to the current rules themselves, but instead looks back to criteria used to evaluate x-ray images when they first were introduced into evidence.

The following list is a selective bibliography of current law review literature thought to be of interest to civil defense counsel.

U.S. and International

Damages

Ronald J. Allen, et al., An External Perspective on the Nature of Noneconomic Compensatory Damages and Their Regulation, 56 DEPAUL L. REV. 1249 (2007).

Lauren N. Grattenthaler, Note, Policy, Plain Language, and Legislative Purpose." Applying State Medical Malpractice Caps on Damages to Federal EMTALA Claims, 4 IND. HEALTH L. REV. 85 (2007).

Steven R. Hamlin, Punitive Damages After Campbell: The Role of Out-of-State Conduct, 56 DEF. L.J. 377 (2007).

Roy Kreitner, Partial Damages for Breach of Contract, 30 TEL AVIV U. L. REV. 265 (2007).

Wee Ling Loo & Erin Goh-Low Soen Yin, Awards of Damages Under the Singapore Consumer Protection (Fair Trading) Act, 9 AUSTL. J. ASIAN L. 66 (2007).

1. Mitchell Polinsky & Daniel L. Rubinfeld, A Damage-Revelation Rationale for Coupon Remedies, 23 J.L. ECON. & ORG. 653 (2007).

Fabio Polverino, A Class Action Model for Antitrust Damages Litigation in the European Union, 30 WORLD COMPETITION L. & ECON. REV. 479 (2007).

Evidence

Anthony R. Benedetto, Not Just "X-Rays" Today: Recommendations for Admissibility of Modern...