A Legisprudential Analysis of Evidence Codification: Why Most Rules of Evidence Should Not Be Codified - But Privilege Law Should Be

47 Pages Posted: 23 May 2005

See all articles by Paul F. Kirgis

Paul F. Kirgis

St. John's University School of Law; University of Montana - Alexander Blewett III School of Law

Abstract

Although most of the law of evidence has been codified at the federal level for three decades, the law of privilege has resisted efforts at codification. Because it is such a glaring omission, those efforts are renewed periodically. Recently a number of prominent scholars have taken up this cause. Their calls for codification of the law of privilege raise the question of whether codification is truly justified with respect to the law of evidence more generally. In this article, I take up that question as a prelude to considering whether the law of privilege should be codified. To do this, I will first suggest standards for use in assessing any proposed codification. Then I will ask whether, as a normative matter, the law of evidence should be codified. I will then focus on the individual rules of evidence, most notably the privilege rules, to draw conclusions about whether those standards are met.

I address the topic of codification from a particular legisprudential perspective. I take as my premise that, in our system rooted in the common law, legislation must be justified in relation to its effect on the common law. Relying on Hayek, Calabresi, and other scholars, I will argue that legislation is justified when it serves one of two functions: an ordering function, directed at ensuring the efficiency and fairness of existing common-law rules; and a remedial function, directed at correcting errors in the common law. I will analyze the rules of evidence - both the codified rules and the uncodified rules of privilege - to assess whether codification is justified according to my criteria. I will conclude that most rules of evidence do not meet the criteria for codification, but that the law of privilege does.

My practical objectives are two-fold. First, as I suggested, I hope to bolster the case for the codification of privilege by showing why it, more than almost any other area of evidence law, satisfies the standards for codification. Second, while I acknowledge that repeal of the various evidence codes is unlikely and might not even be justified by the cost, I hope to sound a cautionary note about further codification efforts. With some important exceptions, most notably the law of hearsay, the current rules of evidence are vague enough to allow for development of the law through case-law evolution. For that evolution to occur, though, two conditions must be satisfied. We must leave the rules essentially as they are, without attempting to fix minor problems of application that might arise. And the courts, including the Supreme Court, must take seriously Rule 102's command to interpret the Rules so as to secure the promotion of growth and development of the law of evidence. I hope to encourage both of those developments by suggesting reasons why case-law evolution is generally superior to codification in the evidence context.

Suggested Citation

Kirgis, Paul F., A Legisprudential Analysis of Evidence Codification: Why Most Rules of Evidence Should Not Be Codified - But Privilege Law Should Be. Available at SSRN: https://ssrn.com/abstract=727743

Paul F. Kirgis (Contact Author)

St. John's University School of Law ( email )

8000 Utopia Parkway
Jamaica, NY 11439
United States

University of Montana - Alexander Blewett III School of Law ( email )

Missoula, MT 59812-0002
United States

Do you have negative results from your research you’d like to share?

Paper statistics

Downloads
129
Abstract Views
1,371
Rank
397,606
PlumX Metrics