Evidence Law Adrift

Mirjan R. Damaska

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October 8, 2013
176 pages, 6 1/8 x 9 1/4
ISBN: 9780300206043
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In this important book, a distinguished legal scholar examines how the legal culture and institutions in Anglo-American countries affect the way in which evidence is gathered, sifted, and presented to the courts. Mirjan Damaska focuses on the significance of the divided tribunal (between judge and jury), the concentrated character of trials ("day-in-court" justice), and the prominent role of the parties in adjudication (the adversary system). Throughout he contrasts the Anglo-American system with Continental, or civil- law justice, where lay fact finders sit with professional judges in unified tribunals, proceedings are episodic rather than concentrated, and the parties have fewer responsibilities than in the common-law tradition.

Damaska describes the impact of the traditional institutional environment on the gathering and handling of evidence in common- law jurisdictions and then explores recent transformations of this environment: trial by jury has dramatically declined, pretrial proceedings have greatly proliferated, the adversary system shows signs of weakening in some types of cases. As a result, many rules and practices supporting the treatment of evidentiary material are in danger of becoming extinct. In addition, says Damaska, the increasing use of scientific methods of inquiry could place further strains on the use of traditional common-law evidence. In the future we should expect greater variety in decisionmaking activity, with factual inquiries tailored to the specific type of proceeding and common-law evidence restricted to a narrow sphere

Mirjan R. Damaska, Sterling Professor of Law at Yale Law School, is also the author of The Faces of Justice and State Authority, published by Yale University Press.

"By a skillful use of comparative materials, Damaska gives many insights into the forces that have shaped the way evidence is handled in common law and civil law systems."—Arthur T. von Mehren

"A masterly, thought-provoking, and persuasive explanation of the distinctive features of common law evidence and their modern erosion, by the world's leading scholar on comparative common law and civil law evidence. Damaska's constant, balanced comparisons to Continental procedure will give common law readers a fresh and valuable perspective on their system of evidence law. This lucid book will be widely influential. Every evidence scholar should buy it, and I would also recommend it to anyone interested in comparative trial procedure."—Roger C. Park

"Mirjan Damaska's Evidence Law Adrift is a major addition to the literature of explanation and critique. . . . He has written a book that every evidence scholar should read, and that will be helpful to anyone interested in trials and court procedure. . . . He illustrates his points with satisfying concreteness. But most of all, he presents his ideas clearly and effectively, telling a story that holds together in a way that makes it hard to resist."—Michigan Law Review

"In Evidence Law Adrift, Mirjan R. Damaska offers to trial judges valuable insights as to the forces underlying the rules of evidence, and to the academic community a provocative view of where it should be going in its periodic reviews of the rules of evidence."—Avern Cohn, Jurist: The Law Professors' Network

"This book should substantially affect the way we think about legal procedure; it provides powerful tools for the analysis of related tendencies in the state apparatus and in the legal system."—Philip Lewis, Journal of Law and Society