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John Leubsdorf on Evidentiary Principles and Human Behavior

This is the first in an occasional series in which Rutgers School of Law–Newark faculty discuss a new article or current research. 

  John Leubsdorf  
  John Leubsdorf
 
Evidence law is typically appraised from the standpoint of a judge deciding whether to admit evidence at trial. But in his recent article in the Iowa Law Review, Professor John Leubsdorf, Associate Dean for Faculty and Research, turns that perspective around and considers how evidence law shapes the behavior of parties to a dispute before trial. “Evidence Law as a System of Incentives” recommends that lawmakers, lawyers, and scholars consider not just the impact of evidentiary principles on the particular case before a court but also how these principles can reach forward to affect peoples’ behavior in anticipating, conducting, litigating, and settling future disputes.


How did you choose this subject?

In other areas of law, scholars have been writing about how law affects human behavior. Recently, a few articles applied this approach to one or another rule of Evidence, but there has been no general treatment of the subject. I decided to attempt one.

Did you find anything that surprised you?

I’ve always been (and still am) a fan of pretrial documentary discovery. But in writing this article, I realized that discovery combined with the hearsay rule discourages organizations from keeping records and encourages “document retention rules” that are really document destruction rules. Our liberal discovery rules enable opponents of an organization to get all of its relevant documents. They can then use anything harmful to the organization against it because it is what Evidence people call an admission. But the hearsay rule will prevent the organization from using some of its documents for its own benefit. So organizations have good grounds to be careful when they create or preserve documents.

Things should work out differently in many foreign countries, where there is little documentary discovery and no hearsay rule. There the organization can use its own records when they help it, while preventing its opponents from getting harmful records. Perhaps there are good reasons for our own approach, but at least we should be thinking about how it affects the creation and preservation of evidence.

Did you find any other way in which Evidence law neglects trying to encourage good evidence?

Our witness fees are ridiculously low, between five and fifteen dollars per day. Testifying is often unpleasant for the witness, and takes her away from her usual job. So it is not surprising that many witnesses fail to show up. Yet no one has been writing about this.

Are there any good proposals for obtaining better evidence?

Yes, there are. The 2009 National Academy of Sciences report on strengthening forensic science in the United States shows the weakness of much forensic evidence, and proposes reforms such as fostering research to develop and evaluate scientific evidence, credentialing its practitioners, and considering better ways of presenting it to jurors and judges. In sum, we should do for other scientific evidence what we’ve started to do for DNA evidence, which has already contributed a lot to our criminal justice system.

How does this article fit into your other work?

Mainly by being different. I’ve always been an eclectic. I write in different fields, using different analytic approaches, because that’s how my ideas come to me. I would rather say something that I find interesting and hope others will too than build a unified body of work.

What are you working on now?

I’m about to publish a new edition of a Civil Procedure book that I co-author, an article on an arcane Legal Ethics rule called the Hot Potato Doctrine, and a comment on visual representations of Justice.

Posted 6/20/11