The Truth Will Out? Incoherence and Scepticism in Foundations of Evidence Law

23 Pages Posted: 9 Aug 2007

See all articles by David A. Hamer

David A. Hamer

The University of Sydney - Faculty of Law

Abstract

Stein's book raises many important issues about the function and structure of evidence law, and is often insightful. However, it contains structural flaws and inconsistent analyses. Stein defines the domain of evidence too narrowly. His dichotomy between fact-finding and extraneous objectives is false, and ignores many interesting interactions. Stein views allocation of the risk of error as the unifying and pervasive function of evidence law. As risk-allocation involves value judgments, evidence law should not give way to free proof. But Stein fails to sustain his vision of evidence law as a set of coherent principles serving this common goal. His analyses of various standards of proof make the law appear quite incoherent. And if any goal is paramount, factual accuracy remains the most plausible candidate. But Stein's ambivalent endorsement of the weight concept raises questions about how this is best pursued, and cloaks scepticism about the epistemic value of evidence.

Suggested Citation

Hamer, David A., The Truth Will Out? Incoherence and Scepticism in Foundations of Evidence Law. Modern Law Review, Vol. 70, p. 318, 2007, University of Queensland TC Beirne School of Law Research Paper No. 07-09, Available at SSRN: https://ssrn.com/abstract=1005788

David A. Hamer (Contact Author)

The University of Sydney - Faculty of Law ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

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