Economic Analysis of Evidence Law

Author: Xu Xin / Xu Yun
Publisher:
Publish Date: 2004-09-01
Features: "This article can be considered a comprehensive work on conducting an economic analysis of the rules of evidence (perhaps it is not exhaustive and does not provide a final conclusion)." — Judge Richard A. Posner "Judge Richard A. Posner, in this article, comprehensively conducts an economic analysis of the rules of evidence for the first time." — Notes from the Stanford Law Review "The Economic Analysis of the Rules of Evidence is one of the major developments in the field of evidence law in recent years. Reading Posner's works always makes one feel incredibly humble, let alone reviewing them. Posner, a distinguished Chief Judge of the U.S. Court of Appeals for the Seventh Circuit, is a respected, prolific legal scholar." — Roger C. Parker (Professor of Law, University of California) Judge Richard A. Posner, in this article, comprehensively conducts an economic analysis of the rules of evidence for the first time. The article is divided into three parts. First, Judge Posner proposes and describes two possible economic models: the search model and the cost-minimization model, to describe how evidence is obtained, presented, and evaluated. In both models, Posner introduces Bayes' theorem to examine rational decision-making. Second, he analyzes the process of evidence collection, comparing and contrasting the "inquisitorial" and "adversarial" judicial systems in economic terms. At first glance, the inquisitorial system seems more economically efficient. However, this may merely be an illusion, resulting from the greater public visibility of the adversarial system and the widespread acceptance of plea bargaining. Finally, the paper discusses the issue of burden of proof and specific provisions of the "Federal Rules of Evidence," including: harmless error, limiting instructions, relevance, character evidence, hearsay evidence, expert witnesses, and various witness privileges and exclusion rules. He concludes that the evidence law of the common law system is not simply sacrificing efficiency to protect non-economic value goals; in fact, it is quite efficient and may even be superior to the evidence system of the inquisitorial civil law system. However, he also proposes numerous reform suggestions.