How does one prove the law? If your neighbor breaks your window, the law regulates how you can show your claim to be true or false; but how do you prove that in breaking your window your neighbor has broken the law? American jurisprudence devotes an elaborate body of doctrineand an equally elaborate body of accompanying scholarly commentaryto worrying about how to prove facts. It establishes rules for the admissibility of evidence, creates varying standards of proof, and assigns burdens of proof that determine who wins or loses when the facts are unclear. But the law is shockingly inexplicit when addressing these issues with respect to the proof of legal claims. Indeed, the entire language of evidentiary proof, so sophisticated when it comes to questions of fact, is largely absent from the American legal system with respect to questions of law.
As Gary Lawson shows, legal claims are inherently objects of proof, and whether or not the law acknowledges the point openly, proof of legal claims is just a special case of the more general norms governing proof of any claim. As a result, similar principles of evidentiary admissibility, standards of proof, and burdens of proof operate, and must operate, in the background of claims about the law. This book brings these evidentiary principles for proving law out of the shadows so that they can be analyzed, clarified, and discussed. Viewing legal problems through this lens of proof illuminates debates about everything from constitutional interpretation to the role of stipulations in litigation. Rather than prescribe resolutions to any of those debates, Evidence of the Law instead provides a set of tools that can be used to make those debates more fruitful, whatever one’s substantive views may be. As lawyers, judges, and legal subjects confront uncertainty about what the law is, they can, should, and must, Lawson argues, be guided by the same kinds of abstract considerations, structures, and doctrines long used to make determinations about questions of fact.
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About the Author
Gary Lawson is the Philip S. Beck Professor at the Boston University School of Law. He is coauthor of The Origins of the Necessary and Proper Clause and The Constitution of Empire: Territorial Expansion and American Legal History and the author of seven editions of Federal Administrative Law. He lives in Acton, MA.
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Evidence of the Law
Proving Legal Claims
By Gary Lawson
The University of Chicago PressCopyright © 2017 The University of Chicago
All rights reserved.
The Formal Structure of Proof
Suppose that someone tells you that A has broken B's window. If you are a typical person, you might respond by insisting that A's accuser "prove it" — especially if you happen to be A. Conversations of this kind in normal discourse presuppose that claims such as "A has broken B's window" are either true or false and that identifiable considerations can, at least in principle, bear on their truth or falsity.
Of course, not everyone engaged in ordinary conversation has a well worked-out theory about what truth and falsity actually mean, about whether those terms refer to actual states of the world and/or to our knowledge of those states, and about what circumstances warrant using those terms. It is quite possible, for instance, that A and B have very different understandings of what it actually means to say that "A broke B's window" and will thus be talking past each other. But even with all of these concerns in mind, a demand for proof in this context seems entirely meaningful and reasonable, and the discussants could agree on that point even if they will not necessarily agree on the precise mechanisms of the proof process or even at what the proof is ultimately aiming.
To be sure, there are always skeptics aplenty ready to raise broad-based doubts about the meaning or utility of words in general, or of words such as "true" or "false" in general, or of the possibility of "proof" of anything. But ordinary conversationalists, whatever their differences with each other may be, will surely unite in dismissing such skeptics as foolish troublemakers, and we can do so here as well, for two independent reasons. First, the skeptics are wrong, though establishing that point would involve a separate book, preferably a book written by a philosopher (which I am not). Second, and much more importantly, this is a book about law, and law roundly rejects that kind of broad-based philosophical skepticism. Law is all about words, claims, and proof; and even if law does not always, or even often, aim at "THE TRUTH," the possibility of such a thing, in some sense of the term, underlies the entire legal structure. As Mirjan Damaska elegantly put it, "unless some variant of the view that truth is a matter of correspondence to facts is accepted, our present evidentiary arrangements are deprived of meaning." Within the framework of the law, the meaningfulness of talk about proving that A broke B's window, with the idea of proof having at least something to do with assessing actual states of the world, is foundational.
But now suppose that someone tells you that A has broken B's law. It is easy to imagine an ordinary conversationalist insisting upon proof of such a claim, just as he or she could insist upon proof of the claim about A breaking B's window. Again, the ordinary conversationalist will have no obvious problem seeing that such claims about lawbreaking can be either true or false (however one fills in the content of those terms) and that identifiable considerations (however one identifies them) can, at least in principle, bear on their truth or falsity. There is no obvious reason in ordinary language why claims about broken windows and claims about broken laws would require completely different theories of knowledge or modes of discourse.
At this point, however, the law largely rejects the assumptions of the ordinary conversationalist. Courts deciding questions of law simply do not speak of evidence, proof, burdens, admissibility, relevance, or any of the other terms familiar from the law of evidence. Peter Tillers aptly observed that it is "unconventional, and possibly even startling" to argue that "theories of factual inference have much to say about theories of legal inference." He was right in his description of the standard reaction within the legal community — a reaction that he thought was misguided — to suggestions that one talk about proving the law. Indeed, Tillers was one of the very few scholars to believe, or at least openly to announce that he or she believes, that it is both meaningful and useful to speak of "proving the law" or marshaling "evidence of the law." It is more common, so I have found, to encounter something like the insistence of Richard Posner that "to ask whether 'it is true' that the Fourteenth Amendment means this or that has an odd ring." Indeed, one scholar has noted the possibility of defining a question of fact "as one that calls for proof and evidence," presumably consigning questions of law to some realm in which proof and evidence do not apply. Another has similarly said that, in direct contrast to legal claims, "factual statements call out for evidence."
This reaction to the idea of proof of law is an enormous mistake. It leaps from the conclusion, which might or might not be true, that the law's chosen methods for providing proof of and evidence for facts do not and/or should not apply to questions of law to the wider conclusion, which is clearly false, that the very ideas of proof and evidence have no application to legal claims. Quite to the contrary, as an epistemological matter, legal claims are most emphatically proper objects of proof and evidence, at least with respect to most understandings of the term "legal claims." The trick is to figure out what forms of proof and what kinds of evidence.
The argument of this chapter proceeds as follows: First, I will briefly outline the formal structure employed by the law for the proof of propositions that the law conventionally labels as factual. This is a very sketchy discussion that is designed only to provide some needed context for the ensuing analysis of proof of law; it is not my aim in this book to delve into the details or mechanics of the law's machinery for factual proof. Second, I will suggest that this formal structure of proof is universalizable to the proof of any proposition. And by "any proposition" I mean literally any proposition in any discipline, legal or otherwise. The law's structure of proof for facts is a special case of a much wider framework defining the very idea of proof. Third, I will confirm that claims about the existence or meaning of legal norms are propositions under all but some very obscure theories of legal metaphysics (that is, theories about what makes a claim a distinctively legal claim), meaning that the foregoing formal structure of proof is therefore broadly applicable to legal claims. As part of this final demonstration, I will argue that the law's distinction between questions of law and questions of fact is purely conventional and policy-driven rather than grounded in anything about the nature of human knowledge or the natural world.
None of this should be nearly as startling as it might seem. I do not regard the argument of this chapter as controversial; I regard it as foundational for the chapters to come. Subsequent chapters will explore the consequences of the epistemological equivalence between questions of law and questions of fact, but for now the concern is solely with establishing that formal equivalence.
The law certainly does not have to think about proof and evidence of propositions labeled "legal" in exactly the same way that it thinks about proof and evidence of propositions labeled "factual," but it has to think about proof and evidence of legal propositions in some way. This is not a matter of choice; it is a matter of epistemological necessity. If the law does not think about these questions explicitly, it will resolve them implicitly, whether or not it thinks that it is so doing.
1. Five Facets of Factual Proof
When one thinks about the proof of facts in the law, one naturally thinks first and foremost of the rules of evidence, which prescribe a set of filters through which evidence that parties wish to use in formal litigation must be screened. While those rules do not apply to all factual questions that arise in litigation, they purport to govern the process of proving so-called "adjudicative" facts, meaning essentially the facts about events that are specifically pertinent to the case in question. Of course, even many of the most important adjudicative facts that parties wish to prove actually avoid the scrutiny of the rules of evidence, because many of the most important "facts" in cases are really background assumptions, generalizations, and prejudices brought to bear by the fact finder as part of his or her framework for processing evidence, and the law frequently does not subject those framework assumptions to formal proof. Moreover, it is conventional wisdom that the rules of evidence, while technically applicable to adjudicative fact finding by judges, are in practice reserved only for (increasingly rare) jury trials and have little to no application to bench trials. "Evidence," as that term is used in the law governing the proof of adjudicative facts, is really that subset of evidence that the law chooses to put through the crucible of its formalized admissibility rules. That subset, however, is often quite large, so with respect to a nontrivial set of facts in any given case, the rules of evidence provide an explicit structure defining what can be used to prove various claims.
The particularities of that structure vary with the premises, goals, and organization of the legal system. Most obviously, the American law of evidence is heavily influenced, if not driven, by the possibility (however increasingly slim) of jury trials. While there are reasons to doubt whether the difference between judges and juries as decision makers is great enough to warrant completely different evidentiary schemes for bench and jury trials, no one doubts, as a descriptive matter, that American evidence rules are constructed with certain assumptions — some of which might well be false — about jury decision making in mind. For example, under American evidence law as it applies in court proceedings, one generally cannot permissibly reason that because someone behaved a certain way in the past, they have a "character" that likely led them to behave that way in the particular instance under dispute, even though people normally rely on such "evidence" in their everyday lives. (NFL coaches, for example, spend hours studying game tapes in search of tendencies that can be exploited, and NFL scouts — or at least the good ones — are acutely aware of the "character" of the players that they are evaluating.) There is nothing in the nature of a legal system, even one that relies upon juries, that requires any such evidentiary norm. Indeed, it is so sufficiently counter-intuitive that one needs some affirmative explanation grounded in the goals and operations of a specific legal system in order to understand it, such as an assumption that decision makers will systematically overvalue such evidence so consistently that it makes sense categorically to bar its use. Similarly, the famous presumptive rule against hearsay — subject to roughly three dozen exemptions and exceptions — purports to forbid decision makers from relying on the recounting of out-of-court statements as evidence of the truth of the matters contained in those statements. This norm is also contrary to common practice outside the law. Nothing in the nature of reality or knowledge dictates, or even necessarily intimates, these kinds of norms. Nonetheless, these technical rules of evidence are the classic stuff of law school classes, so it is not surprising that they dominate consideration of the legal system's treatment of factual proof.
But the rules of evidence — whatever their content with whatever justifications in whatever legal system — answer only a small fraction of the questions that arise in connection with the proof of facts in the law. The rules of evidence determine what is allowed to count toward proving a factual claim. That is important to know; one will approach the process of proof very differently if one is allowed to use anything and everything to prove a claim or instead must clear a series of formal evidentiary hurdles in order to have something count toward the desired conclusion. But this is only one of many things that one needs to know in order to apply a process of proof.
There are at least five elements that are essential to the proof of any factual claim in the law. First, as just noted above, one must have some set of rules, or principles, of evidence that determine what is admissible to establish the legal truth of any claim. A decision maker considering whether to accept a claim must have some means of determining which subset of the myriad facts in the world should be taken into account. Those principles of admissibility might be "anything goes," or they might be something far more limiting and technical such as the Anglo-American trial system provides. Even within the formal American legal system, which means limiting oneself to proceedings before official tribunals rather than arbitration forums or other mechanisms of private dispute resolution, one can find numerous circumstances in which principles of admissibility are quite open-ended. In federal administrative adjudication, for example, the baseline rule of evidence is simply that "[a]ny oral or documentary evidence may be received, but the agency as a matter of policy shall provide for the exclusion of irrelevant, immaterial, or unduly repetitious evidence." More detailed rules of evidence apply in agency proceedings only when Congress so provides, or when the agency chooses to adopt them. Absent such application of formal evidence rules to agencies, agency decisions can be based on hearsay, and reasoning from past performance to present conduct is fine as well. As previously noted, the practice of judges in bench trials may approximate this norm more closely than it approximates the much more restrictive formally applicable rules of evidence. The point here, once again, is not that principles of admissibility must or should have any particular content, but only that some such principles, however broad or narrow, are recognized to exist in all legal contexts involving proof of facts.
Principles of admissibility might be formulated as relatively definite rules or as relatively vague standards. They might be geared entirely toward the ascertainment of metaphysical truth or they might be slanted in order to pursue any number of policies unrelated to seeking identification of reality. But in whatever fashion one formulates them, there must be some set of norms that determines what is allowed to count toward legal truth. These principles of admissibility, as I will call them, are an essential component of any theory of proof, and their importance in the proof of factual claims in the law is obvious.
Second, once you have identified what kind of evidence is admissible, you need some mechanism for determining how much that evidence counts toward establishing the legal truth of a factual claim. In other words, you need to have some mechanism for ascribing weight, value, or significance to the admissible evidence. While the standard term in the legal literature for this idea is "weight," and the term employed by the Federal Rules of Evidence is "probative value," I prefer "significance" because it avoids even the hint of a cardinal system of measurement for the epistemological consequence of evidence. Perhaps there is some unitary cardinal scale on which evidence can be placed. Perhaps not, and perhaps all evaluation of evidence can only be ordinal. Nothing in this book depends on the solution to that problem, and the term "significance" seems more neutral among those competing accounts. In any event, the key point here is that there needs to be some mechanism, whether cardinal or ordinal, for ascribing epistemological value to evidence.
That mechanism need not be formalized. Indeed, the American rules of evidence for proof of facts conspicuously avoid any formalized norms regulating the probative significance to be attached to any particular piece or set of evidence. Those rules, however, explicitly recognize that "probative value" is a vital ingredient of the proof process, and they allow the trial judge to exclude evidence that the judge, using his or her own significance-assigning process, deems too insignificant relative to dangers of misuse, diversion, or waste of time to allow into the record. Similarly, in formal administrative adjudications, agencies are instructed that decisions should be rendered in accordance with "reliable, probative, and substantial evidence." Those terms are not defined, but it is assumed that everyone understands that evidence has significance that is at least ordinally measurable.
Excerpted from Evidence of the Law by Gary Lawson. Copyright © 2017 The University of Chicago. Excerpted by permission of The University of Chicago Press.
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Table of Contents
Chapter 1. The Formal Structure of Proof
Chapter 2. Proving the Law
Chapter 3. Proof in Interpretation
Chapter 4. Understanding Indeterminacy
Chapter 5. Building the Imperfect Evidence Set
Chapter 6. Stipulating the Law
Chapter 7. Selecting Standards of Proof