Classical Rhetoric, Practical Reasoning, and the Law of Evidence

101 Pages Posted: 22 Sep 2010

Date Written: 1995


This Article traces the debate over interpretation of legal texts back to its roots in the ancient law courts, demonstrates how the debate played out in the creation of the Federal Rules of Evidence, and illustrates how the debate plays out in current interpretations of the Federal Rules. The article argues that of all the possible “schools” of interpretation, the best approach to the construction of the Federal Rules of Evidence is “practical reasoning,” a school firmly rooted in the realm of classical rhetoric and the method best suited to the philosophical perspective of pragmatism that led to the creation of the Federal Rules of Evidence. Although this Article is concerned primarily with the Federal Rules, its insights extend to any procedural system with a codified set of evidence rules, for codification creates a tension between the desire for predictability and certainty - provided, in the views of some, by a “hard” text - and the demand for flexibility posed by circumstances unforeseen by the drafters of the code. Part I develops the historical and philosophical context of the interpretative problem, first tracing the roots of the interpretation debate back to its beginnings - in the law courts of ancient Greece and Rome - and then showing how similar issues, resulting tension, and resolutions surrounded the creation of the Federal Rules of Evidence. Part II traces the debate to its modern context, as it plays out in approaches to statutory interpretation, and argues that the best resolution of the problem is its ancient one: practical reasoning. Part III critiques the use of practical reasoning as an approach to interpreting evidence rules, focusing on five United States Supreme Court cases: Beech Aircraft Corp. v. Rainey, United States v. Salerno, Daubert v. Merrell Dow Pharmaceuticals, Williamson v. United States, and Tome v. United States.

Keywords: Law and philosophy, law and rhetoric, classical rhetoric, federal rules of evidence, purposivism, textualism

Suggested Citation

Scallen, Eileen A., Classical Rhetoric, Practical Reasoning, and the Law of Evidence (1995). American University Law Review, Vol. 44, 1995, Available at SSRN:

Eileen A. Scallen (Contact Author)

UCLA School of Law ( email )

385 Charles E. Young Dr. East
Room 1242
Los Angeles, CA 90095-1476
United States
(310) 206-0592 (Phone)

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