An Economic Approach to the Law of Evidence

Abstract

The law of evidence is the body of rules that determines what, and how, information may be provided to a legal tribunal that must resolve a factual dispute. The importance of the accurate resolution of such disputes to an economically efficient system of law has been discussed at length, but the economic literature dealing with the rules themselves is scanty in relation to the scope and importance of evidence law. This article is the first comprehensive (though it is neither exhaustive nor definitive) economic analysis of that law. It is in three parts. The first part proposes and elaborates an economic model (actually two models, a search model and a cost minimization model) of evidence. The second part examines the basic structure and structural rules of the evidence-gathering process; it includes an economic comparison between the "inquisitorial" and "adversarial" systems of justice and an analysis of issues relating to burden of proof. The third part is an economic appraisal of salient provisions of the Federal Rules of Evidence, the most influential American codification of such rules; it also takes up some issues of evidentiary privilege and exclusion that the rules do not deal with explicitly.