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66 B.U. L. Rev. 439 (1986)
The New Evidence Scholarship: Analyzing the Process of Proof

handle is hein.journals/bulr66 and id is 445 raw text is: THE NEW EVIDENCE SCHOLARSHIP: ANALYZING THE PROCESS OF PROOF RICHARD LEMPERT* I. EVIDENCE SCHOLARSHIP: FROM RULES TO PROOF When I began teaching evidence seventeen years ago, the field was moribund. The great systematizers of the common law-Wigmore, Maguire, McCormick, Morgan and their ilk-had come and, if they had not all already gone, their work was largely finished. Not only was most of what passed for evidence scholarship barely worth the reading-the same, after all, could be said of many fields of law at most times-but disregarding student work, few scholars were writing regularly on evidentiary matters. This situation changed with the proposal and adoption of the Federal Rules of Evidence. New talent was attracted to the field of evidence and lead articles on evidence proliferated in the law reviews. Too often, however, these articles followed the model What's Wrong with the Twenty-Ninth Exception to the Hearsay Rule and How the Addition of Three Words Can Correct the Problem. 1 They were seldom interesting and if they had poten- tial utility it was rarely realized, for the federal rules remain today largely as they were when enacted.2 The work was, in short, a timid kind of decon- structionism with no overarching critical theory to give it life. But the interest in evidence inspired by the federal rules, even if rarely revealed in memorable work on that topic, was all to the good. Genuinely talented people have become excited about exploring evidentiary issues. Today I think we are seeing the fruits of this burgeoning of interest and the talent it has attracted. Evidence is being transformed from a field concerned with the articulation of rules to a field concerned with the process of proof. Wigmore's other great work is being rediscovered,3 and disciplines outside t © 1986 by Richard Lempert. * Professor of Law & Sociology, University of Michigan Law School. J.D. 1968 University of Michigan Law School; Ph.D. 1971 University of Michigan. I am grateful to the following people for reading and commenting on a draft version of this paper: Stephen Burbank, Stephen Fienberg, David Kaye, Donald Regan, David Schum, Peter Tillers and Judith Thomson. The usual disclaimers of commentor responsibility apply; in some instances with more than the usual degree of force. 1 This title not only suggests the focus of the type of scholarship I am thinking about but also typifies it in length and lack of grace. 2 Some of this work may have influenced state codifications or judicial construc- tions of ambiguous language. Such an impact-if it occurred-is a genuine contribu- tion that I do not denigrate. It reminds us that scholarship may be valuable without being interesting. 3 J. WIGMORE, THE SCIENCE OF JUDICIAL PROOF AS GIVEN BY LOGIC, PSYCHOL- 439

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