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Stanford Law Review


In this article, Judge Richard A. Posner presents the first comprehensive economic analysis of the law of evidence. The article is presented in three parts. First, Judge Posner proposes and describes two possible economic models, both a search and a cost-minimization approach, to describe how evidence is obtained, presented, and evaluated. In both, he incorporates Bayes' theorem to examine rational decisionmaking. Second, he examines the evidence gathering process, comparing and contrasting, in economic terms, the "inquisitorial" and "adversarial" systems of justice. The inquisitorial system, at first glance, appears to be more economically efficient. This, though, may be illusory, a result of the adversarial system's greater public visibility and widespread acceptance of plea bargaining. Finally, the article addresses burden of proof issues, plus specific provisions of the Federal Rules of Evidence: harmless error, limiting instructions, relevance, character evidence, hearsay, expert witnesses, and various privileges and exclusionary rules. He concludes that American evidence law, rather than simply sacrificing efficiency in order to protect noneconomic values, is actually quite efficient and possibly superior to its Continental, inquisitorial counterparts; but a number of reforms are suggested.

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