The new doctrinalism: implications for evidence theory.

• Author: Stein, Alex
• Position: The Constraint of Legal Doctrine

This Article revisits and refines the organizing principles of evidence law: case specificity, cost minimization, and equal best. These three principles explain and justify all admissibility and sufficiency requirements of the law of evidence. The case-specificity principle requires that factfinders base their decisions on the relative plausibility of the stories describing the parties' entitlement-accountability relationship. The cost-minimization principle demands that factfinders minimize the cost of errors and the cost of avoiding errors as a total sum. The equal-best principle mandates that factfinders afford every person the maximal feasible protection against risk of error while equalizing that protection across the board.

This Article connects these principles to the irreducibly second-personal structure of legal doctrine (that tracks Stephen Darwall's celebrated account of morally justified claims). Under this structure, the plaintiff's (or the prosecutor's) authority to extract compensation from (or impose punishment on) the defendant critically depends on the trustworthiness of the individual infringement allegations that make the defendant accountable to the plaintiff (or the prosecutor). Evidentiary rules fit into this second-personal framework only when they promote case specificity, cost minimization, or equal best. Reform proposals that favor different rules are fatally disconnected from that framework and are therefore ill-conceived.

Based on this observation, I criticize three powerful accounts of evidence law that rely, respectively, on economics, probability theory, and morality. These accounts include Louis Kaplow's theory of the burden of proof, Daniel Kahneman and Amos Tversky's claim that factfinders' deviations from mathematical probability are irrational, and Ronald Dworkin's distinction between accidentally and deliberately imposed risks of error. These accounts break away from our second-personal system of entitlements and liabilities; by doing so, they create a methodologically impermissible disconnect between rules of evidence and substantive laws.

INTRODUCTION I. Organizing Principles of the Law of Evidence II. Economic Antidoctrinalism III. Probabilistic Antidoctrinalism IV. moral Antidoctrinalism Conclusion Introduction

Throughout the twentieth century, the realist theories of law came to occupy a dominant position in contemporary jurisprudence. Those theories are diverse. Yet, all of them coalesce around a robust proposition that denies the existence of distinctly legal reasoning. According to those theories, reasoning that takes place in courts of law is not "legal" in any distinctive sense. Rather, it consists of moral, political, economic, epistemic, and psychological claims. These claims are pursued by litigants and subsequently validated or rejected by courts. Formally, they allude to applicable legal rules and the underlying facts, but the actual meaning of those rules and facts is determined by reasons that are external to the law. The reasons that actually determine what the applicable rules say and what the underlying facts are come from morality, politics, economics, epistemology, and psychology. They use legal vocabulary but do not derive from the law. Consequently, so goes the argument, law cannot be considered a self-contained practice and autonomous discipline. As some uncompromising Realists and critical legal scholars put it, "law is an empty vessel." (1)

In the pages ahead, I set forth and explain my profound disagreement with this argument. Realists correctly perceive law as a combined product of moral, political, economic, epistemic, and other societally relevant ideas. These ideas are vital for all forms of social organization, including law. Prior to going into law, however, these ideas undergo selection, adjustment, and integration by the lawmaker: the legislature or a superior common law court. The lawmaker uses these ideas to formulate its goals and to devise rules that realize those goals. As part of that process, it adopts certain ideas while leaving other ideas out. The lawmaker then integrates the selected ideas and writes them into rules that regulate primary activities, adjudication, and courts' decisions.

This process of selection, adjustment, and integration is guided by the lawmaker's reasons. (2) These reasons are distinctively "legal" because they perform a critical organizing role in determining the contents of the legal system. (3) They select the moral, economic, epistemic, and other socially relevant ideas that go into the law and translate them into rules. (4) In what follows, I identify these reasons as "organizing principles."

Organizing principles lie at the heart of the "New Doctrinalism"--theorizing about the actual practice of the law, which is predominantly doctrinal. (5) Full explication of these principles' characteristics requires an extensive philosophical investigation, which I cannot carry out in this Article. The conveners of this Symposium asked me to explore the relationship between the New Doctrinalism and the law of evidence, and I now begin this exploration.

This Article proceeds in the following order. In Part I, I outline the organizing principles of evidence law, explain their connection to specific evidentiary rules and substantive law, and identify the constraints they impose on normative theories of evidence. In Parts II, III, and IV, I criticize economic, probabilistic, and moral theories of evidence that proceed in isolation from those principles and ignore the constraints they impose. A short Conclusion follows.

1. ORGANIZING PRINCIPLES OF THE LAW OF EVIDENCE

   In the paragraphs ahead, I identify three organizing principles of evidence law. (6) These principles originate from epistemology, economics, and morality. The first and most fundamental of the three is epistemic: it requires that courts decide cases on the basis of case-specific evidence, as opposed to generalizations and statistical distributions. (7) The second principle is economic: it requires that court procedures and decisions minimize, simultaneously, the cost of error in factfinding and the cost of avoiding that error. (8) The third principle is moral: it requires that courts afford every person the maximal feasible protection against adjudicative error and that this protection be equal for all parties in civil trials and across all criminal defendants ("equal best"). (9)

   These principles explain and justify the existing allocation of the burdens of proof, admissibility rules, and corroboration requirements. All evidentiary rules, except privileges, are geared toward accomplishing case specificity, cost minimization, and equal best. (10) My book, Foundations of Evidence Law, unfolds this interpretive claim. (11) In this Article, I focus on the principles themselves while trying to refine and further develop my earlier account. Specifically, I explain how these principles integrate with substantive entitlements and liabilities and how they limit normative claims with respect to the law of evidence.

   The facts underlying legal disputes are inherently uncertain and courts consequently never know exactly what they are. (12) Therefore, instead of trying to find the actual facts, courts determine what these facts are likely to be under conditions of uncertainty. (13) The rules, known as the law of evidence, help courts make these determinations. These rules categorize evidence as admissible or inadmissible. (14) They also require corroboration for certain types of evidence and determine the burdens and standards of proof for factual findings. (15) By doing all that, evidentiary rules allocate the risk of error--and the ensuing prospect of wrongful punishment, dispossession, deprivation, or denial of remedy--to one party or another. (16)

   Allocation of error brings probability theory, economics, and moral philosophy into play. Arguably, evidence doctrine must ensure that courts' decisions are aligned with the canons of probability (17) and satisfy the demands of both fairness and welfare maximization. (18) Evidence doctrine, however, steers away from probabilistic calculus (19) and direct welfare maximization; (20) it is also far removed from the fairness ideas recommended by moral philosophers. For these reasons, it has been criticized for being economically ignorant, (21) probabilistically irrational, (22) and morally deficient. (23) These critiques come exclusively from academic corners and they do not sit well with the actual practice of the law. Attorneys and judges do not perceive evidence doctrine as wicked or misguided. (24) I posit that the practitioners' intuition is correct. Evidence doctrine does not ignore probability, economics, and moral theory. Yet, it also does not allow any of these disciplines to take over. Evidence doctrine is informed by a preselected, adapted, and integrated set of probabilistic, economic, and moral ideas, identified here as organizing principles. These principles are formulated and continually refined by common law courts as they go from case to case. They have a common goal: implementing people's substantive entitlements and liabilities as fairly and as efficiently as possible. The organizing principles of evidence law thus fit themselves into the conceptual and operational framework of substantive entitlements and liabilities.

   This framework is decidedly second-personal: it conditions the grant of legal remedies and the imposition of penalties on the presence of authority, on one side, and accountability, on the other side. (25) This framework authorizes a rightholder to impose punishment on or obtain compensation from a person who transgressed her entitlement. (26) The plaintiff's authority and the defendant's parallel accountability thus depend on the correctness of the plaintiff's infringement allegation against the defendant. For example, in order to succeed in a tort suit, a plaintiff must...