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).
It's here: the law of evidence on Spindle Law. See also this post and this post.
No comments:
Post a Comment