The theoretical side of the law of evidence has long been dominated, at least since Jeremy Bentham, by debates between the so-called free proof tradition, on the one hand, and the predominance of rules if evidence, on the other. Bentham and the widespread approach in the civil law world are hostile to the rule-based approach that dominates the common law world’s approach to evidence. Indeed, even such prominent common law evidence theorists as James Bradley Thayer and John Henry Wigmore saw the appeal of the free proof tradition, while attributing the use if rules of evidence in common law jurisdictions largely to the institution of the jury. This chapter in the forthcoming Philosophical Foundations of Evidence Law describes these debates, and offers a robust defense, against Bentham and his followers, of a rule-based approach to evidence. That defense, not limited to the importance of rules for the guidance and constraint of juries, is based partly on the value of rules as guarding against common psychological decision-making weaknesses present for judges as well as for jurors. But the defense also connects a rule-based approach to evidence with the approach of the legal system generally. If the legal system often has good reasons for using legal rules rather than instructions to its decision-makers to simply make the best all-things-considered decision for the matter at hand, then a rule-based approach to evidence can be seen as consistent with the approach of law generally, and the free proof tradition as the odd anomaly.
This Article develops a new way of understanding the law in order to address contemporary debates about judicial practice and reform. The...
A large segment of the political left identifies as “progressive,” but what does a belief in progress entail? This short essay, written for a...
Our perceptions of what we owe each other turn somewhat on whether we consider “another” to be “an other”—a stranger and not a friend. In this essay...
Moore v. United States raises the question whether unrealized gains, such as an increase in property value or a stock portfolio, constitute “incomes...
“Dignity” is a rallying cry of social and political movements worldwide. It also appears in legal doctrine and scholarship. But the meaning of dignity...
Although ethical critiques of markets are longstanding, modern academic debates about the “moral limits of markets” (MLM) tend to be fairly limited in...
Many analyses of law take an unsentimental, perhaps even cynical view of regulated actors. On this view, law is a necessity borne of people’s selfish...
How should judges decide hard cases involving rights conflicts? Standard debates about this question are usually framed in jurisprudential terms...
This article argues that the fact that an action will compound a prior injustice counts as a reason against doing the action. I call this reason The...
At first blush, the debate between Stanley Fish and Ronald Dworkin that took place over the course of the 1980s and early 90s seems to have produced...
Across multiple national surveys sampling more than 12,000 people, we have found that a majority of Americans, more than 60 percent, consider false...
Given that no two acts, events, situations, and legal cases are identical, precedential constraint necessarily involves determining which two...
This chapter examines the intellectual and social contexts in which the American Law Institute (ALI) has operated and how they have influenced the...
Sometimes a police officer can only stop a fleeing suspect by striking or shooting him. When is it morally justified to use such force rather than let...
This short essay considers Benjamin Zipursky’s intriguing effort to identify a tradition of “American natural law theory” that links Benjamin Cardozo...