Evidence Law as a System of Incentives

Iowa Law Review, Vol. 95, No. 5, 2010

Rutgers School of Law-Newark Research Papers No. 065

50 Pages Posted: 8 Mar 2010  

John Leubsdorf

Rutgers Law School Newark

Date Written: March 8, 2010

Abstract

Evidence law is usually considered ex post, from the standpoint of a judge deciding whether to admit evidence offered by a party. This article examines the law ex ante, considering how it affects the behavior of parties contemplating or conducting litigation. Seen from this perspective, the rules of Evidence give rise to a variety of incentives and disincentives. After discussing the more familiar of these, notably those arising from the adversary system, the article explores many unfamiliar incentives and disincentives affecting the creation, preservation and presentation of evidence. In conclusion, it considers some objections to viewing Evidence law as a system of incentives.

Suggested Citation

Leubsdorf, John, Evidence Law as a System of Incentives (March 8, 2010). Iowa Law Review, Vol. 95, No. 5, 2010; Rutgers School of Law-Newark Research Papers No. 065. Available at SSRN: https://ssrn.com/abstract=1566974

John Leubsdorf (Contact Author)

Rutgers Law School Newark ( email )

NJ
United States
973 353-5273 (Phone)

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