Civil Evidence – Fall 2007; Prof. F. Bachand.doc

Civil Evidence – Fall 2007; Prof. F. Bachand Introduction 5 A. The Law of Evidence: Generalities 5 i) Definition and Scope 5 a. The law of evidence is mostly concerned with the factual information on the basis of which adjudicative decisions are made, i.e. with the fact-finding phase of adjudicative means of dispute resolution 5 b. Civil matters 6 ii) Nature of rules of evidence (overview) 6 Draft Rules on Transnational Civil Procedure with comments: Introduction 6 iv) Objectives of the Law of Evidence 7 a. Discovery of the true facts of the case 7 “Truth in Adjudication”, Mirjan Damaska 7 “A Comparative View of Standards of Proof” by Kevin Clermont and Emily Sherwin 9 II. Explanation of Historical Divergence 9 A. Inattention to the Problem 9 B. Insignificance of the Problem 9 C. Avoidance of the Problem 9 Michele Taruffo, Rethinking the standard of proof [optional reading, WebCT] 10 Auberge des Pins Inc. 12 b. Furtherance of public policy goals deemed more important than the search for truth 13 c. Ensuring the efficiency of the adjudicative means 13 B. Overview of relevant sources 13 i) Fact finding before courts 13 ii) Fact-finding before quasi-judicial tribunals 14 iii) Fact-finding before consensual arbitral tribunals 14 C. Structure of the Course: Three Fundamental Questions 15 1. What kind of information is the adjudicative process concerned with? 15 ? What kind of information are adjudicators allowed to base their decisions on? 15 ? What are they allowed to consider when they are drawing conclusions of fact? 15 ? What are they allowed to consider when they draw conclusions of law? 15 2. What are the roles and responsibilities of the adjudicator and the parties in the fact-finding process, i.e. how is knowledge of such information acquired by adjudicators? 15 3. How may such information be used by adjudicators? 15 1. What Kind of Information is the Adjudicative Process Concerned With? 15 A. Evidence Relating to Adjudicative Facts 15 i) Evidence Relating to Fac