Economic Analysis of Evidentiary Law: An Underused Tool, an Underplowed Field (Symposium: The Economics of Evidentiary Law)

The law and economics movement has had a major impact on many areas of law, but rather little on the law of evidence. This is not to say that there have been no attempts to analyze evidentiary issues through an economic lens,\u27 but such efforts are far more scattered in evidence than in other legal fields, including the closely related one of civil procedure.2 Believing that economics has value for evidentiary analysis, I suggested to the Executive Committee and Advisory Board of the Evidence Section of the Association of American Law Schools ( AALS ), when I was chairman of the section, that an interesting topic for the annual program of the section might be The Economics of Evidentiary Law. Somewhat to my surprise, the committee and the board agreed. Eric Rasmusen and Bruce Hay, two leading young law and economics scholars, agreed to participate. Myrna Raeder made the useful suggestion that somebody not oriented to economic analysis ought to serve as a caveator-and then graciously accepted my invitation to play that role. This symposium is the result of that session, unfortunately without the paper presented by Hay and co-written by his colleague David Rosenberg, but with the addition of another contribution by the Israeli scholar Ron Shapira. I am grateful to the participants, and to the editors of the Cardozo Law Review, for their decision to publish these papers. I hope that these efforts will raise consciousness on two fronts. First, I hope scholars and others interested in evidentiary issues will consider the potential value, and limitations, that economic analysis might have. Second, I hope that legal economists will realize that there are many interesting evidentiary problems that might be illuminated by their attention. Why has economic analysis not played a larger role in evidentiary discourse? One factor may be the tendency of evidentiary analysts to look on evidentiary problems as a static matter: Here is the evidence; should it be admitted or not? In discussing some of the principal criteria governing admissibility-such as probative value and prejudicial impact, as well as fundamental fairness concerns- there seems, at least at first glance, to be little room for play for economic concepts. Nevertheless, I believe that for several reasons economic analysis can be a valuable, even indispensable, tool for analysis of various evidentiary issues