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Abstract:
This article advocates selectively abolishing the exclusionary components in the Federal Rules of Evidence. Arguing that some parts of the existing rules cost more than the value of any benefits they provide, it is the author's position that the current system is sufficiently dysfunctional so as to make significant revisions in the Rules of Evidence worthwhile. The article examines the hearsay rule, the rules governing repetitive-behavior evidence, and issues regarding opinion evidence, experts, and authentication. The article proceeds to consider the rest of the FRE 400 series - particularly Rules 401 through 403 - and proposes modifications. Next, the article evaluates some overall issues that apply to these rules, including their impact upon trials and strategic responses by judges and litigants. Finally, the article considers separate rules that could be inaugurated if the existing rules were changed as suggested (including rules designed resolve trials in a speedier fashion).
Federal Rules of Evidence, hearsay, live testimony, witness, deposition, cross examination, Confrontation Clause, Compulsory Process Clause, character evidence, similar crimes, repetitive behavior rule, Daubert factor, authentication, relevance, exclusion, trial expense, jury, exclusionary rules
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Abstract:
There is a dizzying variety of proposals for change in the ways that we determine punitive damages. It is a struggle in search of a purpose, because courts and legislatures lack a coherent vision of the function they want punitive damages to serve. This article attempts to find a unifying principle by undertaking an economic analysis of tort remedies and applying it to the evidentiary principles that determine punitive damages. The approach must be qualified by concerns about informational deficiencies and deontological or ethical problems. Such an analysis shows that many "reforms" are not reforms at all: the use of financial condition evidence, for example, can be shown to be irrational, as can rigid dollar caps. The best approach is to compute a punitive award that fills the gap between the desirable level of deterrence and the deterrence provided by compensatory damages. Evidence about the profitability of the wrongful conduct and the degree of expected harm is better related to this economic measure.
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