Document Type

Working Paper

Publication Date

5-16-2012

SSRN Discipline

Legal Scholarship Network; Criminal Law & Procedure eJournals; Law School Research Papers - Legal Studies; Litigation, Procedure & Dispute Resolution eJournals; Law & Society eJournals; LSN Subject Matter eJournals; Law School Research Papers - Public Law & Legal Theory; Constitutional Law, Jurisprudence & Legal Philosophy eJournals; Humanities Network; Political Science Network

Abstract

The past few decades have seen an explosion in theoretical and empirical scholarship exploring the law of evidence From a variety of disciplines and distinct methodological perspectives this work has illuminated important issues regarding types of evidence legal rules and doctrine the reasoning processes of judges and juries the structure of proof and the normative considerations underlying these various issues This Article takes up the theoretical project writ large Exploring the landscape of evidence scholarship the Article examines a number of methodological and metatheoretical questions What would a successful evidentiary theory look like By what criteria should we assess such a theory What is the purpose of such theorizing What is the relationship between the theoretical and empirical projects In exploring these questions the Article identifies criteria by which to evaluate theorizing in this area To that end the Article first identifies two considerations that underlie any theoretical account of the evidentiary proof process and its components factual accuracy and allocating the risk of erroneous decisions Next it articulates and defends general criteria by which to evaluate theoretical accounts in evidence scholarship in light of these considerations Finally it applies the general criteria to evaluate two theoretical accounts "” a probabilistic conception and an explanatory conception "” and concludes that the probabilistic conception fails and the explanatory conception succeeds in light of the theoretical criteria Along with clarifying evidence theory the Article also clarifies the relationship between theoretical and empirical scholarship in this area

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