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Abstract:
Many believe that the prohibition of expert legal testimony has no place in modern evidence law, and, increasingly, courts allow experts to testify to legal conclusions as long as the jury is able to understand the legal concepts at issue. Within the professional negligence context, however, the easing of the prohibition muddles the distinction between common law negligence and negligence per se. Without the prohibition, an expert can testify that a legally established professional standard exists even though only the court has the ability to decide whether a law provides the basis for negligence per se. This consequence, assumedly overlooked, both illustrates the need to maintain the prohibition and reinforces that, regardless of whether the jury can understand it, expert legal testimony should remain inadmissible. Specific to professional negligence claims, if the source of the proposed professional standard is based in law, expert testimony on that standard is inadmissible.
expert legal testimony, professional negligence, negligence per se
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Abstract:
Although the Supreme Court has recognized a woman's right to choose abortion, that right assumes that the woman is able to make such a meaningful choice. If incompetent, a court appoints a guardian for a pregnant woman, through which the incompetent woman is able to make decisions. Because the incompetent pregnant woman has a guardian, courts should not also appoint a guardian for the fetus. The appointment of a fetal guardian is unconstitutional because it infringes on the incapacitated woman's ability to exercise her constitutional right to choose abortion. Additionally, the appointment of a fetal guardian would interfere with the woman's guardian's ability to make decisions for the woman and is generally inconsistent with the purpose of guardianship laws. Lastly, the appointment of a fetal guardian is plainly inefficient because the woman's guardian is best able to make decisions regarding the pregnancy and there is no need for the fetal guardian to participate in such decisions.
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