Apology Excepted: Incorporating a Feminist Analysis into Evidence Policy Where You Would Least Expect It

Southwestern University Law Review, Vol. 28, p. 221, 1999

Indiana Legal Studies Research Paper No. 153

61 Pages Posted: 12 Feb 2010 Last revised: 10 Jul 2013

See all articles by Aviva Orenstein

Aviva Orenstein

Indiana University Maurer School of Law

Date Written: 1999

Abstract

In this Article, I offer a feminist critique to challenge the Federal Rules’ so-called objectivity and neutrality. In Part II, I apply a feminist analysis to argue that the evidence rules are not neutral or objective, nor could they ever be. Even where the rules of evidence do not claim to be relying on or transmitting values, they nevertheless do so. The Rules purport to elevate logic over emotion. I suggest that the “logic” embedded in evidence rules is laden with cultural biases and that emotion, if properly understood, has a legitimate role to play in crafting evidence policy. In addition, as a practical matter, the rules may discriminate against the cognitive and linguistic styles of women and other subordinate groups.

Keywords: Evidence Rule 407, remedial repair, compromise, Rule 408, apology

Suggested Citation

Orenstein, Aviva, Apology Excepted: Incorporating a Feminist Analysis into Evidence Policy Where You Would Least Expect It (1999). Southwestern University Law Review, Vol. 28, p. 221, 1999, Indiana Legal Studies Research Paper No. 153, Available at SSRN: https://ssrn.com/abstract=1551424

Aviva Orenstein (Contact Author)

Indiana University Maurer School of Law ( email )

211 S. Indiana Avenue
Bloomington, IN 47405
United States
812-855-8736 (Phone)

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