Decoding GDPR: Familiar Terms Could Cause Major Confusion When GDPR Takes Effect

Volume 102 Number 1 : Spring 2018

Departments

From the PublisherFrom the Publisher

Greetings from the new Bolch Judicial Institute

by David F. Levi

From the EditorFrom the Editor

Thank you

by Joe Boatwright

BriefsBriefs

Meet Carl Bolch Jr. and Susan Bass Bolch; a look at the state of the state courts; and more.

On E-DiscoveryOn E-Discovery

Why Can’t I Just Review It in Outlook?

by George Socha and Margaret Wolf

The Storied Third BranchThe Storied Third Branch

Icon of the Bench and Gridiron: Judge Kim Hammond

by Raul Zambrano

Features

Decoding GDPR: Familiar Terms Could Cause Major Confusion When GDPR Takes Effect

by The EDRM GDPR Project Team

On May 25, 2018, the General Data Protection Regulation (GDPR) takes effect, replacing the aged European Data Protection Directive created in the year 1995. GDPR intends to harmonize data-protection laws of European Union member states and strengthen data-protection rights for all individuals within the EU. Because GDPR has extraterritorial application, U.S. businesses have a lot at stake. But nuances and linguistic confusion between GDPR and U.S. litigation concepts could create confusion. To help, EDRM — an international professional e-discovery organization now housed at Duke Law School — has assembled a project team of nearly 30 U.S. and EU professionals to develop best practices guidance for conducting data transfers between the EU and U.S. This article is their first publication, an initial source that clarifies many of the important terms that are commonly used in GDPR and in U.S. e-discovery practices but may have different meanings in different contexts.

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Forensic Fail – Introduction

by Brandon L. Garrett

This year marks the 25th anniversary of the U.S. Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., which fundamentally reshaped how judges evaluate scientific and expert evidence. This volume of Judicature, with three wonderful contributions by Jay Koehler, Pate Skene, and an expert team led by William Thompson, comes at an ideal time to reconsider how successful the modern judicial approach to expert evidence has been. Download the full set of stories here.

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After Uniqueness: The Evolution of Forensic Science Opinions

by William C. Thompson, Joelle Vuille, Franco Taroni, and Alex Biedermann

Big changes are occurring in forensic science, particularly among experts who compare the patterns found in fingerprints, footwear impressions, toolmarks, handwriting, and the like. Forensic examiners are reaching conclusions in new ways and changing the language they use in reports and testimony. This article explains these changes and the challenges they pose for lawyers and judges.

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How Trial Judges Should Think About Forensic Science

by Jonathan J. Koehler

Trial judges should look to the broader scientific community for assistance when evaluating the reliability of any proffered forensic method, including methods that have long played an important role in our criminal justice system. If they do so, they will likely find that the (disinterested) scientific community will provide a very different perspective on the extent to which forensic science claims have stood up to empirical testing than the perspective provided by the interested examiners who provide forensic evidence at trial.

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Up to the Courts: Managing Forensic Testimony with Limited Scientific Validity

by J.H. Pate Skene

The options need not be reduced to a choice between wholesale exclusion of evidence that falls just short of the most rigorous standards of scientific validity or total acceptance of methods that remain scientifically shaky. The Federal Rules of Evidence offer judges a range of tools for managing expert testimony beyond wholesale admission or exclusion. Judicious use of these tools can accommodate both the incremental nature of empirical studies of scientific validity and the need for courts to “resolve disputes finally and quickly.”

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How Lockhart Really Should Have Been Decided: Canons of Construction Are Key

by Bryan Garner

In the winter 2017 edition of this journal, my friend and colleague Professor Joseph Kimble undertook an interesting exercise: rewriting the U.S. Supreme Court’s decision in Lockhart v. United States — one of the first decisions handed down after the death of my late coauthor, Justice Antonin Scalia. Although I agree with Kimble’s favored outcome, I dislike the reasoning and the style of opinion-writing. (See Kimble’s original article here.)

JHEALTH: How the Tenth Circuit is Improving the Health and Performance of Federal Judges

by Marcia Krieger, Michael Gendel, and Timothy DeGiusti

Being a judge offers many benefits — prestige, intellectual stimulation, autonomy, and the opportunity to provide a community service. But the simple fact is that being a judge does not make one immune to physical, mental, and emotional problems that afflict anyone. Indeed, being a judge can increase and complicate these problems. If such problems go unnoticed and untreated, they can lead to unnecessary suffering; they can also impact the judge’s performance. The problem presented to the judiciary is how to identify and address health issues to maintain public confidence in the judicial process. JHealth is a program designed by the U.S. Court of Appeals for the 10th Circuit to address this challenge.

Departments

Point-CounterpointPoint-Counterpoint

Piece of Cake: Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission

by Frank S. Ravitch and Brett G. Scharffs

Book ReviewBook Review

How Solitude Can Make You a Better Leader

by Spencer Levine