Academic

Risinger on Evidentiary Reform

By Lawrence Solum

D. Michael Risinger (Seton Hall University School of Law) has posted Inquiry, Relevance, Rules of Exclusion, and Evidentiary Reform (A Contribution to a Festschrift for Margaret A. Berger) (Brooklyn Law Review , Forthcoming) on SSRN. Here is the abstract:

Federal Rule of Evidence 401 appears on its face to adopt a ?god-view? standard of relevance, which looks only to the relationship between a proffer (the probans) and a target issue (the probandum) in some cosmic sense. This approach is deeply flawed, and renders the resulting notion of ?logical relevance? both illogical and unable to do any work whatsoever. Instead, any workable concept of relevance must be seen as resulting from a tri-partite relationship between and among the probans, the probandum and the processor, that is, the human who acts as the ?decoder? of the information (factfinder).

This approach renders ?relevance? as much a function of the decoder as the code. It makes the program of applying ?naturalized epistemology? to the legal system not merely desirable, but necessary. And it carries significant implications for how to approach the question of evidence reform.

Full post as published by Legal Theory Blog on July 31, 2009 (boomark / email).