The Law of Evidence and the Practice of Theory

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Theoretical inquiries into the nature and functions of legal doctrine typically focus on adjudication. These inquiries explore, for example, whether and the extent to which doctrine constrains decisionmaking, as well as when and how often it dictates unique outcomes. Relatedly, they also explore the extent to which legal reasoning is “autonomous”—that is, whether doctrine guides decisionmaking and dictates outcomes without reliance on nonlegal normative sources. In his insightful article, Professor Alex Stein picks up the other end of the theoretical stick and discusses the extent to which doctrine on the law of evidence should guide and constrain the practice of theorizing about evidence.

In his characteristically deep and bracing style, Stein argues that evidence doctrine places significant constraints on evidence theory. He then goes on to chastise a number of prominent scholars (Louis Kaplow, Amos Tversky and Daniel Kahneman, and Ronald Dworkin) for failing to adhere to these constraints. I am sympathetic to several aspects of Stein’s analysis, although in some cases for different reasons than those he articulates. Rather than focus on areas of overlapping agreement, however, this Response aims to situate Stein’s arguments within the domain of evidence theory more generally, and then to raise some doubts about one of the principles he articulates. My hope is that providing this wider lens will clarify and illuminate not only Stein’s specific claims, but also the general relationship between evidence law and evidence theory. Perhaps this treatment will even shed light on some of the broader questions raised in the University of Pennsylvania Law Review‘s symposium on legal doctrine.

Part I of this Response discusses evidence theory. Part II explicates Stein’s methodology. Part III questions Stein’s case‐specificity principle.

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