Aviva Orenstein has published “Propensity or Stereotype? A Misguided Evidence Experiment in Indian Country,” in the Cornell Journal of Law and Public Policy.

Here is the abstract:

In a significant break with traditional evidence rules and policies, the Federal Rules of Evidence concerning rape and child abuse, Rules 413 and 414, permit the government to admit the accused’s prior sexual misconduct as evidence of character and propensity. Although these rules have been roundly criticized, insufficient attention has been paid to the fact that in allowing propensity evidence for federal sex offenses (as opposed to offenses under state law), these rules disproportionately affect one distinct civilian population: Indians.