I came home at 9:30 last night after my class in evidence, followed by a trip downtown for dinner and my after-dinner speech on civil liberties and public safety in the era of international terrorism. As the owner of a celebrity cat, I am a magnet for animal anecdotage. I was thoroughly upstaged to learn that my host at the dinner, a fellow cat owner, also owns goats, llamas, and a burro, and they love him.
I teach evidence in an actual courtroom in the law school building. Anyone who has seen a trial, real or fictional, knows that lawyers make objections to “hearsay,” invoke “privilege,” mark “exhibits,” browbeat witnesses, and lecture jurors. These moves are authorized and constrained by the “rules of evidence,” a daunting body of doctrine that, for example, bans hearsay evidence (basically, secondhand evidence: asking the jury to believe what someone told the witness out of court and the witness is merely repeating)—but follows the ban by a couple of dozen exceptions. The rules of evidence can be taught as other legal rules are taught, by having the students read them and the cases interpreting them and answer hypothetical questions about them. But I think it is more effective to get the students to learn the rules by using them. And so after spending the first two classes going over the principal rules lightly, I assign trial roles to the students—judge, lawyers, jurors, witnesses—and they conduct a trial, using highly realistic case materials prepared by the National Institute of Trial Advocacy. At first there is a lot of stumbling around as the “lawyers” and “judge” try to make sense of how rules of evidence are actually used in court. But soon they get the hang of it, and we go on to do two or three more trials, of increasing complexity, with the students changing roles from case to case.
Teaching the law of evidence in this way brings trial tactics to the fore and makes the course one in trial advocacy as well as evidence law. The students learn that the rules of evidence are not Platonic essences but instead resources that lawyers use in an effort to win cases and that judges use to keep trials from getting out of hand. A trial lawyer doesn’t object to a question asked to a witness by his opponent merely because the question violates one of the rules of evidence; he objects because the question arguably violates a rule of evidence and the answer may hurt his case. Even then he may not object, fearing that the jury will think he’s trying to keep from them the very thing they’d most like to hear.
The notion of law as resource rather than as diktat has a larger than merely pedagogical significance, one that was at the heart of my evening talk. Most laypersons and many lawyers think that the law is a Procrustean bed to which life must be fitted. The opposing view, which I like to think of as that of the sophisticated insider, is that law is an instrument for promoting social welfare and so seeks to strike a sensible balance between competing interests. The theme of my talk was simple: What we call “civil liberties” is a body of rules mainly created by courts out of general language in the Constitution. The rules strike a balance between personal liberty and public safety. When the relative weights of these interests change, the judges, who created the rules in the first place, change them. As concerns with public safety mount, the scope of civil liberties contracts, and as those concerns recede, civil liberties once again expand. That is how it is, and how, in my opinion, it should be.
The outlook that generates this understanding of law is pragmatism—not in any fancy philosophical sense but in the everyday sense in which American culture might be described as pragmatic. Applied to law, it asks judges to weigh consequences rather than to steer by abstractions such as “property,” “liberty,” “rights,” “justice,” “fairness,” and “equality.” The judge who thinks he can reason his way to what is “just” and “fair,” a self-appointed moral virtuoso, is unlikely to think seriously about the practical consequences of his decisions. May we be spared those judges, as well as the ones who shirk responsibility for their decisions by imagining themselves a mere transmission belt for conclusions reached hundreds of years ago by the all-knowing framers of the Constitution. The judge is a responsible official, not an oracle; and his responsibility is to use the resources of text, history, and precedent to help him reach practical results that are responsive to the needs of the present day.