Saturday, June 14, 2003

Historic National Historic Landmark Status Recognized; Interior Secretary Vows that National Patrimony Will Not be "Wiped Away" under Her Watch

New York City, June 13 – U.S. Secretary of the Interior Gale Norton today designated the bird droppings on the office window in room 433 in Cardozo Law School as a National Historic Landmark. She observed that the bird droppings had been on the window for more than a decade and, thus, were almost certainly unique in the annals of Western civilization. In the face of protests from Tillers, the occupant of room 433 and a professor of law at Cardozo Law School, Secretary Norton noted that law teachers do not count for much, “particularly not at Cardozo,” and that, in any event, the English common law right to “ancient lights” had never been recognized under U.S. law or by Cardozo Law School. The Secretary noted that National Historic Landmark status means that a showing of overwhelming necessity would now have to be made to make removal of the bird droppings lawful. Secretary Norton rejected as inadequate Tillers’ contention that Cardozo Law School plainly has no intention or ability to remove the bird droppings from the window in room 433. The Secretary noted, “That is like saying that the crime of murder should be abolished because the risk of unlawful homicide is low.” The Interior Secretary added, “Cardozo Law School and Yeshiva University are to be warmly praised for steadfastly ignoring repeated requests for the removal of the bird droppings. Had the requests been granted, an important part of our national patrimony would have been washed away.”

Wednesday, June 11, 2003

Demonstration, Persuasion, and Suasion by Proof in Litigation

There is a strong theoretical argument that there is no sharp distinction between the use of evidence to prove a factual proposition and the use of evidence to persuade a decision maker of the truth of some factual proposition. And there is something -- a great deal, I think -- to the proposition that forcing triers of fact to consider rival claims -- including rival claims about factual matters -- advanced by advocates who have strong incentives to advance rival claims and hypotheses can be a very important device in a society's pursuit of the truth about factual issues. Granting this much, it is still a bit jarring and disconcerting (to me) to receive, from a supposedly reputable publishing company, an advertisement meant for lawyers that proclaims, for example, "Whip the rug out from under opposing witnesses." This headline refers to "'Killer' techniques in Cross-Examination."

Can any system of proof in litigation achieve legitimate purposes if a society sanctions tactics such as "pulling the rug out from under witnesses" by the use of "killer" interrogation methods? I believe that an affirmative answer to this question is possible only because of the ambiguity of the notion of "pulling the rug out from under a witness." If asked, representatives of the publishing company might say, "Well, we were referring to methods of unmasking deception by witnesses." But if they were to say this sort of thing, would you believe them?