
Contents
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1. Proving Executive Power 1. Proving Executive Power
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2. Proving Agency Power 2. Proving Agency Power
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3. Proving Constitutional Meaning 3. Proving Constitutional Meaning
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4. The Silence of the Law 4. The Silence of the Law
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Cite
Abstract
This chapter explores, in some concrete settings, how applying principles of proof to legal questions illuminates debates in interpretative theory, using examples drawn both from legal scholarship and from case law. The point is not to support, or even advance, any particular theory of constitutional or statutory interpretation but simply to provide a roadmap for clearer discussion about issues concerning interpretation and proof. If one person is, perhaps without realizing it, talking about principles of admissibility and the other is, perhaps without realizing it, talking about standards of proof, they are likely to talk past each other. Moreover, within the realm of admissibility, the law of evidence in connection with proof of facts often sacrifices the search for truth in favor of other values. There is nothing necessarily wrong with doing so as long as one recognizes it and can defend the resulting trade-off. Various theories of legal interpretation also have implicit admissibility rules that sometimes sacrifice interpretative truth – as defined by those theories’ own lights -- for other values. Those trade-offs need to be acknowledged and defended.
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