Do law professors still write about tort law? In the academy, the tendency is to elevate one’s writing to the more rarefied atmosphere of pure theory. But tort law beckons: it’s a rich sedimentary deposit of granite and limestone, silica and sand, an archeological excavation which must be performed with great delicacy. So, for the law professors out there, here are three simple (actually, not–so–simple) questions:
Are any of the common rules of evidence unconstitutional as applied in practice?
Are any of the common rules of procedure unconstitutional as applied in practice?
Are any of the common rules of law unconstitutional as applied in practice?
These three questions are daunting since the entire landscape of evidence, procedure, and law is at stake as well as the entire area of state and federal constitutional law. Categorizing, summarizing, and evaluating each area––there would be quite a lot of work to be done before any semblance of order could be imposed on a subject this vast and all–encompassing.
Your team of ten or so young round–the–clock research assistants would, by necessity, have to comb through literally hundreds of thousands of cases, both state and federal. Slowly, the search would be narrowed and refined. The process could take months. So, what techniques would be available to make this process of sifting through a seemingly endless desert of sand a bit more manageable?
Craft a template. Conduct your search using a predetermined template which can help narrow the field. “A rule of evidence is unconstitutional if the rule, when applied, unlawfully discriminates or unjustifiably harms a particular class in a constitutionally prohibited manner.” A general phrase of that nature would provide at least some guidance, although the search would still remain painstakingly arduous.
Look for outliers. You’re looking for outliers. Many cases seem harmless enough but when examined carefully actually represent radical departures from accepted norms. What cases, when literally construed, are actually quite harmful? If we take these cases at face value, here’s what these cases actually mean. The task is essentially unmasking that which is disguised.
Search for baseless, irrational, commonly used practices. What were we thinking? Notwithstanding how commonly used a particular rule of law, evidence, or procedure, some practices are simply irrational because they make no practical or theoretical sense. These are often hiding in plain sight. The litmus test here may simply be: what rules or practices approach the borderline of irrationality?
Artificial intelligence will enable such sifting to be performed much faster––entire libraries will be capable of being scanned, categorized, and analyzed in minutes or seconds rather than months or years. Patterns will emerge. For the first time, we will be able to see the forest from the trees. There’s no doubt we will find obvious imperfections and irregularities which could have (or should have) been detected much sooner.
Those in practice almost never resort to constitutional challenges. Why? Because such challenges are rarely successful. You’re seeking to overturn an entire body of case law or a duly enacted legislative statute where a presumption of constitutionality attaches. The shift in thinking sought is similar to redirecting the course of a river.
Academics, as well as those in practice, should develop a greater sensitivity and awareness to this area––taking a closer look at first principles. Some of the most forward thinking work of the future may be from those who simply cast a cold eye on the conventional wisdom. A wolf in sheep’s clothing is still a wolf––there’s quite a lot that remains to be done. It’s right before our eyes: we simply have to take the time to see.