Relaxing evidence rules shifts their burden from protection to exposure depending on one’s position
Evidence
Perhaps the outstanding theoretical difference between a hearing before an arbitrator and one before a court relates to the rules as to the admissibility of evidence. The rules of the American Arbitration Association say that, “The arbitrator shall be the sole judge of the relevance and materiality of the evidence offered and conformity to legal rules of evidence shall not be necessary”. Here is one of the sharpest challenges which private courts make to public ones: Are your rules of evidence really aide in the ascertainment of the truth or hindrances? … Modern statutes provide for the vacating of an award where the arbitrator was guilty of “refusing to hear evidence pertinent or material to the controversy”. Thus, while an arbitrator may feel a great sense of freedom in declining to follow the exclusionay rules of the courts, he is likely to be slow in developing exclusionary rules of his own. The result tends to be that the arbitrator will admit almost anything. For prospective litigants in the position of the Phlusters, this poses the question whether they regard the judicial rules of evidence as primarily a handicap in the presentation of their own positions, or primarily a protection in the presentation of the opposing positions. — Henry M. Hart, Jr. and Albert M. Sacks, The Legal Process, 4840
Categorization
- XREF: The evidence-as-protection-vs-burden point echoes the chapter’s larger thesis — that whether private/‘informal’ process suits you depends on your institutional position and power — connecting to the LGST focus on how interpretive/institutional choice is positional. — connects to: Doctrinal shifts lowering evidence standards enabled aggressive enforcement producing racial disparities — Joseph Avery, Jim Sidanius, Joel Cooper, Gregory Davis, Amanda N., Bias in the Law: A Definitive Look at…, 1065
Broader Connections
- Doctrinal shifts lowering evidence standards enabled aggressive enforcement producing racial disparities
#exemplifies(0.85) — Joseph Avery, Jim Sidanius, Joel Cooper, Gregory Davis, Amanda N., Bias in the Law, 1065