CRITICAL ANALYSIS OF LAW WORKSHOP
presents
Talia Fisher
Tel Aviv University, Buchman Law School
Contractual Ordering of the Procedural Arena
Tuesday, October 17, 2017
12:30 – 2:00 PM
Solarium (Room FA2), Falconer Hall
84 Queen’s Park
The Adversarial Model is the hallmark of Anglo-American Law. It is premised upon the simultaneous operation of two underlying mechanisms: The Adversarial Mechanism and the onsent Mechanism. The Adversarial Mechanism-- which attracted most of the attention hereto, and gave the system its name-- is premised on the assumption that where the parties disagree, truth will emerge from the dialectic competition between them. The Consent Mechanism relates to those situations of agreement between the parties: According to prevailing understanding, the Consent Mechanism is premised upon the notion, that where the parties agree as to the facts of the case, truth is present. Inother words, consent serves as (yet another) mean to unravel the truth. Critics of the Adversarial Model have mostly focused on the Adversarial Mechanism, pointing to its potential failure under conditions of power disparities between the litigating parties. The paper shifts the attention to the Consent Mechanism, and challenges its common understanding, highlighting the tension between the epistemic function of trial and the private incentives of litigating parties to deviate from the truth (and from what the law recognizes as the appropriate methods of uncovering it). The practical importance of the issue lies in the growing volume of evidentiary and procedural waivers in civil and criminal trials. Its normative significance stems from the fact that such contractual ordering of the procedural arena goes to the heart of the Adversarial Model. The contractual ordering of the criminal trial arena also challenges the public/private divide, and enriches the notion of “due process” from a new direction: While traditionally the due process discourse focused on how to safeguard the private interests of the parties against the public interest (in deterrence, crime control etc.) evidentiary and procedural waivers raise the opposite issue—of how to safeguard the public and the institutional values of civil and criminal process against the private interests of the litigating parties.
Talia Fisher is a Professor at the Tel Aviv University Law Faculty. Since joining the Faculty in 2004 she has written on Evidence Law, private supply of legal institutions, empirical analysis of law, and probabilistic applications in procedural law. She has previously served as the Faculty’s Vice Dean for Research (2015-2017) and as the Director of The Taubenschlag Institute of Criminal Law (2009-2013). Fisher has been a visiting professor at the University of Toronto, a fellow at the Edmond J. Safra center for Ethics at Harvard University, and a visiting scholar at Harvard Law School. She holds an LL.B., LL.M. and Ph.D. in law from the Hebrew University. Fisher was awarded the Shneur Zalman Cheshin Award for Academic Excellence in Law (2012) and the Zeltner Prize for Young Legal Scholars (2009). She is a member of the Young Israel Academy of Sciences and Humanities and a member of the international Global Young Academy (GYA).
A light lunch will be provided.
For more workshop information, please contact Nadia Gulezko at n.gulezko@utoronto.ca
