Robert P. Burns (Northwestern University - School of Law) has posted The Withering Away of Evidence Law: Notes on Theory and Practice (Georgia Law Review, Forthcoming) on SSRN. Here is the abstract:
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The plausibility of evidentiary regimes depends on more basic understandings of the nature of the trial. "Tough-minded" evidence scholars may sometimes be reluctant to concede the significance of more "tender-minded" normative inquiries into the trial. Some implicit ideals of evidence law, such as factual accuracy, are relatively constant among theories of the trial, while others, such as materiality, are significantly affected by competing theories. This essay identifies our received view of the trial and suggests an alternative. It then offers a number of grounds for further relaxation of the exclusionary force of evidence law and for strengthening its parliamentary function of imposing order and discipline on the trial. Finally, it offers some concrete examples of what an evidence law which performs a parliamentary, but not an exclusionary, function would look like.
