Evidentiary Policies Through Other Means
71 Pages Posted: 5 Sep 2017
Date Written: August 31, 2017
In this Article, I explore interactions between evidence law and other legal fields. I start investigating the impact evidence law can have on substantive policy goals. Other legal scholars have previously recognized the impact that rules of evidence can have on substantive policies, such as modifying individuals’ behavior outside the courtroom or affecting the distribution of entitlements in society. However, they have not paid enough attention to the inverse relationship between substantive and evidence law. That is, legal scholars have not paid enough attention to the different ways we can use substantive law to pursue policies traditionally thought to belong to evidence law. The interdependence between substance and procedure has made the task of formulating a clear and robust theoretical distinction difficult. Frustrated, generations of legal scholars have concluded that the solution is to abandon the distinction altogether. This Article argues against that conclusion. One important lesson that follows from the discussions below is that the substantive-procedural distinction is better understood not monolithically, but as a cluster of different distinctions. When comparing different uses of both sides of distinction one often resorts to different things. Occasionally, the comparison focuses on rules or doctrines. Other times, it focuses on underlying policies objectives. At yet another time, our focus shifts to the expected or observed results of legal changes. In other words, we often compare apples to oranges. This suggests that to capture fully the important elements of both sides of the distinction, we might need more, not fewer, distinctions. Furthermore, to the extent that there are non-trivial heuristic and pedagogical benefits to retaining the distinction between substantive and procedural law, we should not to do away with it like some suggest. This is true even if we are ultimately unable to develop a consensual and objection-free theoretical demarcation line for the distinction.
Keywords: Evidence, Procedure, Legal Theory
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