A Comparison of Fact-Finding Methodology in Evidence Law and History

2020 ◽  
pp. 11-34
Author(s):  
Baosheng Zhang ◽  
Guoyang Ma
Keyword(s):  
Evidence Law ◽  
Fact Finding

The explanationist revolution in evidence law

2019 ◽  
Vol 23 (1-2) ◽  
pp. 60-67 ◽  
Author(s):  
Amalia Amaya
Keyword(s):  
Alternative Interpretation ◽  
Revolutionary Change ◽  
The Core ◽  
Basic Distinction ◽  
Evidence Law ◽  
Fact Finding ◽  
Legal Proof ◽  
Probabilistic Criteria

According to Allen and Pardo, the field of evidence law has experienced a revolution -in Kuhn's sense- from probabilism to explanationism, which they identify with the relative plausibility theory. The explanationist revolution, argue Allen and Pardo, has placed explanationist -rather than probabilistic criteria- at the core of the fact-finding process and, in contrast to probabilism, has advanced a comparative understanding of the theory of legal proof. This paper develops an alternative interpretation of the explanationist revolution in evidence law. First, it elaborates on the concept of legal revolution and argues that it involves a kind of shift that is best characterized as a Hacking -rather than a Kuhnean- type of revolution and, thus, as an ‘emplacement’ instead of a ‘replacement’ revolution. Second, it claims that the shift from probabilism to explanationism involves a deep -genuinely revolutionary- change in the conception of rationality that is taken to govern the processes of evidence and legal proof. Other differences between probabilistim and explanationism, such as those mentioned by Allen and Pardo, are not central to the revolutionary shift, but rather emanate from this basic distinction. Last, it argues that the explanationist paradigm embraces, but cannot be reduced to, the relative plausibility theory; the identification of explanationism with the relative plausibility theory occludes the richness and possibilities harboured by the new, explanationist, paradigm.

How to Teach Factual Analysis: Assessing an Indian Evidence Law Course

2018 ◽  
Vol 5 (2) ◽  
pp. 122-136
Author(s):  
Ajay Kr Sharma
Keyword(s):  
Empirical Study ◽  
Positive Impact ◽  
Hybrid Approach ◽  
Teaching Experience ◽  
Analysis Methods ◽  
The Subject ◽  
Evidence Law ◽  
Fact Finding ◽  
Teaching Learning ◽  
Law Of Evidence

This article experientially narrates the innovative use of certain fact-finding and analysis methods, namely, ‘an investigation problem’, the Wigmorean chart method and the probability theory with Bayesian analysis (with the case law demonstrating its pragmatic application and limitation), by the author, an Indian law teacher, in teaching his ‘law of evidence’ course. This marks a departure from the conventional way of teaching evidence law in India, which presents its own challenges. In the course of this article, the author vividly shares his teaching experiences, discusses the academic resources used, highlights the key learning outcomes derived in administering these components, and delineates their overall positive impact on the learning of the subject. He further validates these experiences on the basis of the results of an empirical study conducted by him, in which a large number of his students voluntarily participated and gave their feedbacks. The results demonstrate the efficacy of these factual analysis methods individually, and their positive correlation with the increased understanding and knowledge of this course. This is descriptively demonstrated by the results obtained from Kendall’s Tau-b correlation which, along with the graphics, show a significant monotonic relationship between the said three methods and their cumulative contribution in terms of the overall learning of the subject. This empirical study also demonstrates an overall match between the author’s teaching experience as an evidence law teacher in teaching the avowed fact analysis methods, and his evidence law class’ experience as the students learning them, which is crucial for every effective teaching–learning exercise. After discussing important literature on teaching fact analysis and evidence law, the author concludes by justifying his overall use of the ‘hybrid approach’ in teaching his ‘law of evidence’ course. Consequentially, this study seeks to inspire other evidence law teachers to pedagogically assimilate similar methods in their curricula.

The Refoundation of Evidence Law

1996 ◽  
Vol 9 (2) ◽  
pp. 279-342 ◽  
Author(s):  
Alex Stein
Keyword(s):  
Upright Position ◽  
New Foundations ◽  
Core Principle ◽  
Evidence Law ◽  
Fact Finding

This article examines and criticizes the conventional evidence doctrine and its core principle (albeit with exceptions) of legally unregulated fact-finding. New foundations for evidence law are offered that reflect a principled allocation of the risk of error in conditions of uncertainty. Such conditions are present in virtually every litigated case. This article opposes the doctrine of ‘free proof’. That doctrine underlies the current flowering of discretion injudicial fact-finding and is responsible for the ongoing abolition of evidentiary rules. The evidence law theory developed in this article is of course itself theory-dependent. Far from claiming the theory here is uniquely correct rather than simply valid, I shall be satisfied by its survival as yet “another view of the Cathedral”. Nonetheless, evidence law as conventionally portrayed can hardly be compared with Monet’s Cathedral. It is conspicuously more like Pisa’s Leaning Tower. This article aims at returning the leaning tower of evidence law to an upright position.

scholarly journals Can there be a burden of the best explanation?

2018 ◽  
Vol 22 (2) ◽  
pp. 91-123 ◽  
Author(s):  
Gustavo Ribeiro
Keyword(s):  
Evidence Law ◽  
Civil Cases ◽  
Fact Finding ◽  
The Many ◽  
Legal Fact ◽  
Burden Of Persuasion

In this article I address a foundational question in evidence law: how should judges and jurors reason with evidence? According to a widely accepted approach, legal fact-finding should involve a determination of whether each cause of action is proven to a specific probability. In most civil cases, the party carrying the burden of persuasion is said to need to persuade triers that the facts she needs to prevail are “more likely than not” true. The problem is that this approach is both a descriptively and normatively inadequate account of reasoning with evidence in law. It does not offer a plausible picture of how people in general, and legal fact-finders in particular, reason with evidence. And it turns out that if we try to do what the approach tells us, we end up with absurd results. Faced with these difficulties, a group of evidence scholars has proposed an alternative. According to them, legal fact-finding should involve a determination of which hypothesis best explains the admitted evidence, rather than whether each cause of action is proven to a specific probability. My main contributions in this article are twofold. First, I elaborate on the many descriptive, normative and explanatory considerations in support of an explanation-based approach to standards. Second, I offer novel replies to pressing objections against that same approach.

Reforming the Role of the African Commission on Human and Peoples’ Rights in Advancing Democratic Principles and Human Rights in African Countries: An Examination Using the Lens of Swaziland/ eSwatini

2019 ◽  
Vol 34 (2) ◽  
Author(s):  
Jeremy Sarkin
Keyword(s):  
Human Rights ◽  
African Countries ◽  
Individual Country ◽  
The Status ◽  
Effective Role ◽  
Limited Compliance ◽  
Fact Finding ◽  
Democratic Principles ◽  
African Commission

This article explores the role of the African Commission on Human and Peoples’ Rights and the role it plays regarding human rights in individual country situations in Africa. It specifically examines the extent to which it has been able to advance a human rights agenda in countries with long-standing human rights problems. The article uses Swaziland/ eSwatini as a lens to examine the matter, because of the longstanding problems that exist in that country. This is done to indicate how the institution works over time on a country’s human rights problems. The article examines a range of institutional structural matters to establish how these issues affect the role of the Commission in its work. The article examines the way in which the Commission uses its various tools, including its communications, the state reporting processes, fact-finding visits, and resolutions, to determine whether those tools are being used effectively. The article examines how the Commission’s processes issues also affect it work. Issues examined negatively affecting the Commission are examined, including problems with the status of its resolutions and communications, limited compliance with its outcomes, and inadequate state cooperation. Reforms necessary to enhance to role and functions of the Commission are surveyed to determine how the institution could become more effective. The African Union’s (AU|) Kagame Report on AU reform is briefly reviewed to examine the limited view and focus of AU reform processes and why AU reform ought to focus on enhancing human rights compliance. The article makes various suggestions on necessary institutional reforms but also as far as the African Commission’s procedures and methods of work to allow it to have a far more effective role in the promotion and protection of human rights on the continent. It is noted that political will by the AU and African states is the largest obstacle to giving the Commission the necessary independence, support and assistance that it needs to play the role in Africa that it should.

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