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03/13/2017

Gary Lawson on Proving the Law
Mike Rappaport

I received this book – Evidence of the Law: Proving Legal Claims – in the mail and am looking forward to reading it.  Gary Lawson, of course, is a leading originalist and an expert in administrative law.  I use his first rate Administrative Law casebook.

In Evidence of the Law, Gary discusses the fact that our legal system, while focusing carefully on the methods and standards for proving facts, generally ignores the methods and standards for proving law.  Yet, such methods are crucial.

And nowhere is this more true than in originalism.  If one thinks about constitutional originalism, it is very much concerned about the methods and standards for proving law.  Originalism, of course, defines the law as the original meaning of the Constitution.  But it spends significant time considering how one establishes that original meaning.  Does one consider the original intent, the original public meaning, or the original methods?  Also, originalism is concerned about the standards that govern the proof of the law.  For example, if a person challenging legislation can only prove by a preponderence of the evidence – by 51% probability – that the law forbids the legislation, is that sufficient to justify striking it down?  Some originalists argue yes, others argue no.

Here is the synopsis from Amazon:

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 doctrine—and an equally elaborate body of accompanying scholarly commentary—to 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.