Systemic Lying

This Article offers the foundational account of systemic lying from a definitional and theoretical perspective. Systemic lying involves the cooperation of multiple actors in the legal system who lie or violate their oaths across cases for a consistent reason that is linked to their conception of justice. It becomes a functioning mechanism within the legal system and changes the operation of the law as written. By identifying systemic lying, this Article challenges the assumption that all lying in the legal system is the same. It argues that systemic lying poses a particular threat to the legal system. This means that we should know how to identify it and then try to address it once we see it happening. Accordingly, this Article presents a guide to identifying a set of symptoms that are the hallmarks of systemic lying and posits a unitary cause, although not a one-size-fits-all solution. Through a series of case studies, it shows that systemic lying emerges as a saving mechanism that mediates between culture and law. Rather than allow the law to take its course and deliver what would be perceived as unjust outcomes, participants lie and preserve the façade of a system that delivers results consonant with popular moral intuitions. Systemic lying is both persistent and powerful because it achieves a type of licitness that individual lies or underground deception lack. At the same time, it poses a unique threat to the legitimacy of the system by signifying that truth is not paramount in the courtroom

Law\u27s Credibility Problem

Credibility determinations often seal people’s fates. They can determine outcomes at trial; they condition the provision of benefits, like social security; and they play an increasingly dispositive role in immigration proceedings. Yet there is no stable definition of credibility in the law. Courts and agencies diverge at the most basic definitional level in their use of the category. Consider a real-world example. An immigration judge denies asylum despite the applicant’s plausible and unrefuted account of persecution in their country of origin. The applicant appeals, pointing to the fact that Congress enacted a “rebuttable presumption of credibility” for asylum-seekers “on appeal.” This presumption, the applicant argues, means that the Court of Appeals must credit his testimony and reverse the decision below. Should the applicant win? Clearly, the answer depends on what “credibility” (and its presumption) entails. But the Supreme Court, confronting this question in Garland v. Dai, declined to provide an answer. Instead, it showcased the analytic confusion that surrounds credibility writ large. At oral argument, the Justices canvassed four distinct ideas of credibility. In their unanimous opinion, they offered a “definition” of credibility that managed to replicate, rather than resolve, the ambiguity among the four. Meanwhile, the everyday work of adjudication continues. Every year, thousands of cases are resolved on credibility grounds— many with life-altering consequences—despite the confusion at the heart of the legal concept. The time has come for our legal system to clarify what it means by “credibility.” While the term can be an umbrella for different ideas, within any given adjudication—like an immigration proceeding—precision about how we are using it is a must. To that end, this Article explores different ideas of credibility, taking the Garland v. Dai argument and opinion as a source of (cautionary) inspiration. It explains why credibility is necessarily distinct from truth, and the malleable nature of the concept. Is credibility a synonym for persuasiveness? Does it refer to the likelihood that someone is telling the truth in this case? To the likelihood that they generally tend to tell the truth? To whether they seem like they’re telling the truth? Ultimately, there is no ideal definition of credibility; it depends on what work the concept is trying to do. What is far from ideal, however, is the current state of affairs, in which credibility means everything and nothing—notwithstanding its role in shaping people’s lives

A Simple Theory of Complex Valuation

Complex valuations of assets, companies, government programs, damages, and the like cannot be done without expertise, yet judges routinely pick an arbitrary value that falls somewhere between the extreme numbers suggested by competing experts. This creates costly uncertainty and undermines the legitimacy of the court. Proposals to remedy this well-recognized difficulty have become increasingly convoluted. As a result, no solution has been effectively adopted and the problem persists. This Article suggests that the valuation dilemma stems from a misconception of the inquiry involved. Courts have treated valuation as its own special type of inquiry distinct from traditional fact-finding. We show that reintroducing fundamental principles of fact-finding can provide a simpler and more accurate method of complex valuation. Our conclusion rests on the premise that valuations are nothing more than exercises in routine fact-finding. Valuation is not an ethereal question with no right answer. Rather, valuation is a process of inferring the value that a relevant community places on an asset. This basic point has been ignored in practice and received almost no attention in the academy. Recognizing this foundational point can both restore the legitimacy of the process and reduce the costs of uncertainty and biased testimony. We demonstrate that a return to traditional evidentiary rules, including attention to burdens of proof, will discourage courts from resorting to ad hoc calculations and will encourage courts to arrive at valuations through vetted methodologies that are shown to be reasonably accurate and, most importantly, supported by the record. We further show that this will lead to an improvement in the quality of information provided by expert witnesses

Bending the Rules of Evidence

The evidence rules have well-established, standard textual meanings—meanings that evidence professors teach their law students every year. Yet, despite the rules’ clarity, courts misapply them across a wide array of cases: Judges allow past acts to bypass the propensity prohibition, squeeze hearsay into facially inapplicable exceptions, and poke holes in supposedly ironclad privileges. And that’s just the beginning. The evidence literature sees these misapplications as mistakes by inept trial judges. This Article takes a very different view. These “mistakes” are often not mistakes at all, but rather instances in which courts are intentionally bending the rules of evidence. Codified evidentiary rules are typically rigid, leaving little room for judicial discretion. When unforgiving rules require exclusion of evidence that seems essential to a case, courts face a Hobson’s choice: Stay faithful to the rules, or instead preserve the integrity of the factfinding process. Frequently, courts have found a third way, claiming nominal fidelity to a rule while contorting it to ensure the evidence’s admissibility. This Article identifies and explores this bending of the rules of evidence. After tracing rule bending across many evidence doctrines, the Article explores the normative roots of the problem. Codification has ossified evidence law, effectively driving judges underground in the search for solutions to their evidentiary dilemmas. Rather than trying to suppress rule bending, we advocate legitimizing it. Specifically, the Article proposes a residual exception that would enable trial courts to admit essential evidence in carefully defined circumstances. Such an exception would bring rule bending out of the shadows and into the light with benefits to transparency, legitimacy, and accountability. And perhaps most importantly, it will reestablish trial courts as a partner in the development of evidence law