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Supreme Courts rely on Penn State Law professors

UNIVERSITY PARK, Pa. – Two state supreme courts recently relied on the writings of Penn State Law professors on topics ranging from construction insurance contracts to DNA testing for paternity.

The Supreme Court of New Jersey cited and quoted Penn State Law professor Christopher French in a recent decision that effectively resulted in the overruling of a long-standing precedent in New Jersey insurance law.

In deciding Cypress Point Condominium Association v. Adira Towers, LLC, the court repeatedly referred to French’s 2011 publication in the Gonzaga Law Review, "Construction Defects: Are They ‘Occurrences’?”  There, French argued that insurance companies should be required to cover faulty workmanship by developers they insure and that some of the existing case law on the subject, including the frequently cited New Jersey Supreme Court case Weedo v. Stone-E-Brick, wrongly placed this cost on the developer instead of insurance companies.

This argument was influential in the Cypress Point case, as New Jersey's highest court held that a developer’s insurance company was liable for damage resulting from the developer’s faulty workmanship —essentially overturning the existing precedent stemming from the Weedo case.

French’s scholarship on insurance for construction defects has helped shape case law around the country, including a 2013 decision from the Supreme Court of West Virginia that reached a similar conclusion to the Cypress Point case and cited the same article in overruling prior West Virginia precedent on the issue.

The topic of insuring construction defects and the evolving case law surrounding them will also be the subject of a forthcoming article by French being published in the University of Pennsylvania’s Journal of Business Law, “Revisiting Construction Defects as Occurrences under CGL Insurance Policies.

Moving from insurance law in New Jersey to criminal law in Kentucky, in upholding a conviction for rape, that state’s highest court draw on a series of articles and a treatise by Penn State Law’s associate dean for research and Distinguished Professor, David H. Kaye. 

The defendant, Alfred Ivey, Jr., lived with his half-sister and her daughter from a previous relationship. The daughter became pregnant at the age of 13. Seven years later, she revealed that Ivey was the father and had repeatedly raped her before then. A paternity test confirmed that Ivey was the father, and a jury convicted him of two rapes of a minor. 

Ivey objected that the “probability of paternity” introduced at trial—a whopping 99.9999 percent—was inadmissible because it rested on a questionable assumption about probabilities.  The Kentucky Supreme Court had approved of this assumption in an earlier criminal case, but Professor Kaye had criticized that reasoning in a series of law review articles and in chapters of three leading treatises on evidence.  He proposed an alternative method of presenting the results of DNA paternity tests.

In light of Kaye’s writing, the Kentucky court agreed that its earlier description of statistics in paternity cases was mistaken.  Nevertheless, it found no error in the case before it because Kaye’s approach was “in essence, what was used in this case.”  Indeed, the court’s exposition and analysis drew so much on Kaye’s scholarship that the court thought it appropriate to explain that “Professor Kaye's works are cited throughout because he has written frequently on the subject, perhaps more frequently than any other commentator, and is an expert in the field.”

Kaye’s reaction to the opinion is mixed, for reasons explained in an essay entitled "State Supreme Court Approves of Variable-Prior-Odds Presentation of the Bayesian Probability of Paternity," posted to his blog, Forensic Science, Statistics, and the Law.

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