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John Henry Wigmore and the Rules of Evidence: The Hidden Origins of Modern Law (Studies in Constitutional Democracy)

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Review

“At the dawn of the twentieth century, the United States was reeling from the effects of rapid urbanization and industrialization, and the legal system in particular began to buckle under the weight of its anachronism. Porwancher argues that in the midst of this crisis, John Henry Wigmore single-handedly modernized the jury trial with his treatise on evidence, an encyclopedic work that dominated the conduct of trials and inspired generations of jurists—among them Holmes, Cardozo, and Frankfurter—to reshape American law.”—Law and Social Inquiry“[The book] will become the standard work on the subject, and more than that, will contribute to emerging clarity in the field of early twentieth-century legal ideas more broadly.”—Noah Feldman, Professor of Law, Harvard Law School, author of Cool War: The Future of Global Competition“It evidences a close reading of Wigmore’s work and extensive work in the archives at Harvard and Northwestern, bringing to light a good deal of new material on the connections among important figures in ‘legal modernism.’”—Robert P. Burns, Professor of Law, Northwestern University School of Law, author of A Theory of the Trial“A helpful attribute of Porwancher’s book is its excellent organization and the author’s dependable contextualization of his various subjects. With these features, the book is highly accessible to all readers. The book is also flawlessly edited and produced.”—Pennsylvania Bar Association

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About the Author

Andrew Porwancher is an Assistant Professor at the University of Oklahoma, where he teaches legal history. Dr. Porwancher is also the author of The Devil Himself: A Tale of Honor, Insanity, and the Birth of Modern America (Oxford University Press, 2016). Currently, he is at work on The Jewish Founding Father: Alexander Hamilton's Hidden Life (under contract with Harvard University Press). His articles have appeared in the Journal of Supreme Court History, History of Education, Journalism History, Paedagogica Historica, and American Educational History Journal. Dr. Porwancher has been awarded fellowships at Oxford (2013-2014), the American Jewish Historical Society (2015), the Gilder Lehrman Institute of American History (2016), Yeshiva (2017), and Princeton (2018). At the University of Oklahoma, he serves as a faculty fellow at Headington College and on the Faculty Advisory Board of the Center for the History of Liberty.

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Product details

Series: Studies in Constitutional Democracy (Book 1)

Hardcover: 236 pages

Publisher: University of Missouri; First edition (May 31, 2016)

Language: English

ISBN-10: 082622086X

ISBN-13: 978-0826220868

Product Dimensions:

6 x 1 x 9 inches

Shipping Weight: 15.2 ounces (View shipping rates and policies)

Average Customer Review:

5.0 out of 5 stars

1 customer review

Amazon Best Sellers Rank:

#1,298,342 in Books (See Top 100 in Books)

The author's purpose in writing this solid intellectual biography of Wigmore (1863-1943) is to demonstrate that he was not the conservative, formalistic scholar of evidence law that he is often portrayed as. The fact that Wigmore undertook actions like supporting the Sacco and Vanzetti conviction and adopting other conservative positions tended to encourage seeing him as a formalist in his jurisprudence; the author well demonstrates that view is dubious. While the book is not "sparkling," which one would expect in a bio of this master of technical evidence law, it is very well organized and researched, and really changed my view toward Wigmore and his famous and influential Treatise on evidence.The author provides a summary overview in his Introduction. He then moves to a biographical chapter covering Wigmore's life and how his jurisprudential views were shaped. It is interesting to note that Wigmore spent three years in Japan right after his graduation from Harvard Law. This led to some important contributions to the field of comparative law. Far from being mired in logic as his principal tool, instead Wigmore comes off as an early forerunner to the legal realistic movement that would shake the foundations of American legal thinking. American society, not syllogisms, Wigmore felt was the hallmark of our law.This attitude is evidenced in the second chapter which discusses Wigmore's intellectual influences. Thayer, Holmes, and Jeremy Bentham are the big three. Wigmore wanted to simplify such procedures as the admission of documents and evaluating witness testimony, and he eschewed strict universal rules in favor of case-by-case flexibility including using balancing tests. The third chapter reflects this outlook as the author discusses Wigmore's famous treatise in detail and really clarified for me what Wigmore was up to and why it is such a significant event in American legal thought. The fourth chapter focuses upon Wigmore's important views on law and society and how they interact.The fifth chapter on judging is one of the most interesting. Wigmore wanted to vest increased discretion in judges conducting jury trials. His pragmatic approach was to let judges pretty much rule as they chose in evidentiary matters, Look at consequences, not logic, in making evidentiary rulings on a case-by-case basis. Practicality was a guiding principle for Wigmore. He stressed his ideas in the first edition (1904) and subsequent editions of his influential Treatise that ran into the 1940's.The final chapter is extremely interesting; it deals with Wigmore's interactions with leading contemporaries. So the author discusses the interaction of Wigmore with Roscoe Pound, Benjamin Nathan Cardozo, Holmes, Jerome Frank, Max Radin, Harlan Fiske Stone and Frankfurter among others. The author also carefully explains why this great scholar of evidence chose to disavow the Model Code of Evidence which at one time he had supported developing.The author discusses various evidentiary concepts in detail, which can slow things down. But he well illustrates how Wigmore developed his ideas and put them into action in his Treatise--one of the most influential works of American legal scholarship. The book is supported by abundant notes (reflecting the author's tireless research), a good short bibliography and 5 illustrations. The reader does not have to be interesting particularly in evidence law to benefit from the book--it really is a discussion of a vital stage in the development of American jurisprudential thought which impacts still. The author is to be commended for rescuing Wigmore from slipping away into history and explaining how he laid an important foundation for the later Legal Realist movement.

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