How to do Things with Law Students

Abstract

The “new evidence scholarship”, which has revitalised evidence research and teaching in North America in the last thirty years, still seems to have had very little impact in Australia. The key feature of this new scholarship is a transformation of evidence “from a field concerned with the articulation of rules to a field concerned with the process of proof”, “a shift away from the rules of evidence towards the process of proof and the way inferences should be drawn from a mass of evidence”. In Australia one can point to scholars such as Richard Eggleston, David Hodgson, David Hamer, and Andrew Ligertwood, as having published work which falls somewhere on a spectrum that ranges from actively engaging with the new evidence scholarship, to applying its insights, to sharing its concerns. For most published Australian evidence scholarship, however, Lempert’s description of evidence as a “field concerned with the articulation [and critique] of rules” remains apt. Given the minimal impact of the new evidence scholarship on evidence research in Australia, it would be surprising if the new evidence scholarship had had a significant impact on the teaching of Evidence in Australian law schools, and a cursory examination of a range of Australian evidence teaching texts confirms an almost exclusive focus on the rules of evidence, and a corresponding neglect of the processes of proof.