The Living Rules of Evidence

55 Pages Posted: 9 Aug 2021 Last revised: 9 Jan 2024

See all articles by G. Alexander Nunn

G. Alexander Nunn

Texas A&M University School of Law

Date Written: August 6, 2021


The jurisprudential evolution of evidence law is dead. At least, that’s what we’re expected to believe. Ushered in on the wings of a growing positivist movement, the enactment of the Federal Rules of Evidence purported to quell judicial authority over evidence law. Instead, committees, conferences, and members of Congress would regulate any change to our evidentiary regime, thereby capturing the evolution of evidence law in a single, transparent code.

The codification of evidence law, though, has proven problematic. The arrival of the Federal Rules of Evidence has given rise to a historically anomalous era of relative stagnation in the doctrinal space. Although the last half-century has seen material developments in the empirical and normative literatures underlying our evidentiary regime, rulemakers have gone silent. As modern understandings increasingly render the Federal Rules of Evidence anachronistic—and even offensive—there has been no substantial effort by rulemakers to align evidence law with evolving scientific findings or cultural sentiments. Rather, in the words of a prominent judge, evidence law has entered a “dogmatic slumber.”

This Article therefore seeks to awaken evidence law. In particular, it advances a novel jurisprudential framework for interpreting and applying the Federal Rules of Evidence. Drawing on prominent jurisprudential responses to other frozen positivist landscapes, the Article encourages judges to adopt a holistic, progressive perspective when interpreting the Federal Rules of Evidence, one that expresses fidelity to text but also appreciates significant developments in the empirical literature and evolving cultural norms. Where the world outside has evolved such that the underlying rationale for an evidentiary rule no longer holds water, “living evidentiary theory” calls on judges to reassume their historic role and craft an optimal evidentiary solution.

Keywords: evidence, jurisprudence, interpretation, federal courts, living constitutionalism

Suggested Citation

Nunn, Alex, The Living Rules of Evidence (August 6, 2021). University of Pennsylvania Law Review, Vol. 107, pp. 937-90, 2022, Texas A&M University School of Law Legal Studies Research Paper No. 24-05, Available at SSRN:

Alex Nunn (Contact Author)

Texas A&M University School of Law ( email )

1515 Commerce St.
Fort Worth, TX Tarrant County 76102
United States

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