Tuesday, March 30, 2010

Freedom of Contract versus Pursuit of the Truth

Courts and judges often proclaim that the central function of proof is to establish the truth about (legally-material) factual questions. See The determination of facts and the accurate determination of facts are central or important purposes of the process of proof in litigation and the law of evidence respectively. But (i) if parties are free to opt out of society's "standard" legal mechanisms for resolving disputes and resolving disputes about facts and (ii) if parties regularly do so and agree to the use of rules and procedures (e..g., in arbitration, mediation, and so on) that are ill-designed to advance the search for the truth about facts, are judges' pronouncements about the purpose of proof anything more than vacuous pieties? It is as if the judges were saying to us, "If our society had a regularly-used system of factual adjudication, the primary purpose of that system would be the ascertainment of truth. The fact that parties to disputes don't actually use this truth-oriented system of adjudication very often is immaterial. Truth is important to our society!"

Cf. Robert Burns, The Death of the American Trial (2009); 1 Wigmore on Evidence Section 7a at pp. 599 (very bottom of page)-605 (P. Tillers rev. 1983) (reviser's comments, not John Henry Wigmore's).

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The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

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