Fall 2023 • Seminar
Facts and Lies
Exam Type: No Exam
The seminar will explore different kinds of facts, including historic facts, scientific facts, legislative facts, constitutional facts, mixed questions of fact and law; and reasonable inferences. We will ask who should resolve factual disputes: judges or juries? How are different burdens of proof and presumptions used as aids to resolve fact disputes? How should we evaluate video evidence? How are different appellate standards applied? How do courts evaluate fact-finding by administrative agencies? How are facts presented in amicus briefs? How do institutional concerns determine who the fact finders are?
The course will also examine lies in court. How are the rules of evidence designed to determine when people lie? How do the laws punish lies? What devices are used at trial to determine explicit and implicit bias? How do limitations in memory of a witness affect credibility?
Facts and lies have outcome-determinate effects in many cases. Doctrines that determine factfinders, burdens of proof, and other topics covered in the seminar are not only theoretically interesting — they’re practically important for effective litigators to master, and they shape the chances that litigants have at succeeding on the merits.
I hope not only to study legal doctrines but also to give students practical litigation experience by hosting speakers, inviting students to an oral argument in federal court, and providing opportunities for legal writing (like memoranda on a motion to dismiss, a summary judgment motion and a judicial opinion). I will give extensive input on the writing. Occasional two-page response papers will be required.