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Anchors and Flotsam: Is Evidence Law "Adrift"?
Evidence Law Adrift. By Mirjan R. Damaka. New Haven: Yale University Press, 1997. Pp. x, 160. $27.50.
Richard D. Friedmant^
Difference, as well as distance, yields perspective. A comparison of legal systems may search for common underlying principles, or for lessons that one system might learn from another. But it may also be aimed primarily at illuminating one system by light shed from another. This is the aim of Evidence Law Adrift,1 Mirjan Damaska's elegant study of the common law system of evidence, and he is ideally suited for the task. Born and schooled in Continental Europe, he has lived and taught in the United States for twentyfive years. His relation to the common law system of evidence is, I suspect, much like his relation to the English language: He has come to both relatively late, bringing with him a distinctively European sensibility. Consequently, rather like the person who speaks a foreign language with painfully correct grammar, he may take the rhetoric of Anglo-American evidence law somewhat too seriously. But in most respects he is as much a master of the evidentiary system of the common law as he is of its language, which is saying a great deal. Although Damaska disclaims an ambition to "break much new ground"2 or offer "great epiphanies,"3 he hopes that his "comparative looking glass"4 will unveil "unfamiliar horizons."5 He succeeds very well.
Indeed, all in all this is an excellent book. It is brief, enormously broad in scope, and very specific in its attention to a multitude of issues. Writing a book with two of these traits is not particularly difficult, but getting all three together is exceedingly so. Damaska succeeds in part because his writing, while marked by great flair, is quite terse. He sprinkles the page with metaphors and, rather too liberally, foreign language phrases. But these do not take up too much space, and he exercises excellent judgment in including no more detail than is necessary to make his points. He has a nice touch for briefly and lucidly summarizing major procedural systems, differences, and trends. The result is a book that is rich and concentrated without feeling dense; it can be read quickly, but it rewards close, note-taking,...