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Schwartz on Foundations & the Theory of Evidence

By Lawrence Solum

David S. Schwartz (University of Wisconsin Law School) has posted A Foundation Theory of Evidence on SSRN. Here is the abstract:

Conventional evidence theory maintains that the relevance is the fundamental principle of evidence law, because it provides a general theory of evidentiary admissibility. Foundation is conventionally viewed as a restriction on placed on the admissibility of certain items ? exhibits in particular ? of otherwise relevant evidence. This article argues that foundation, if fully and properly understood, is the fundamental principle of evidence law. I argue that there is a ?foundation principle? built into the structure of evidence law that evidence be ?specifically assertive and probably true,? applies to all evidence and is a necessary logical precondition for the relevance of any evidence. The foundation principle flows directly from the nature of an adversarial legal claim, which itself must consist of a single, true narrative. The foundation theory of evidence advanced in this article provides a general theory of evidentiary admissibility, in a way that relevance cannot. It further resolves various key paradoxes and unexplained connections surrounding evidence law: the fact that an identical standard governs both the foundation of discrete items of evidence and judgment as a matter of law; the ?conjunction paradox? in probability theory that has perplexed evidence theorists for 40 years; and the argument (known as the ?conditional relevance problem?) that Federal Rule of Evidence 104(b) is incoherent and should be eliminated.

Full post as published by Legal Theory Blog on July 19, 2010 (boomark / email).