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51 Stan. L. Rev. 1477 (1998-1999)
An Economic Approach to the Law of Evidence

handle is hein.journals/stflr51 and id is 1489 raw text is: ARTICLES An Economic Approach to the Law of Evidence Richard A. Posner* In this article, Judge Richard A. Posner presents the first comprehensive economic analysis of the law of evidence. The article is presented in three parts. First, Judge Posner proposes and describes two possible economic mod- els, both a search and a cost-minimization approach, to describe how evidence is obtained, presented, and evaluated. In both, he incorporates Bayes' theorem to examine rational decisionmaking. Second, he examines the evidence- gathering process, comparing and contrasting, in economic terms, the in- quisitorial and adversarial systems ofjustice. The inquisitorial system, at first glance, appears to be more economically efficient. This, though, may be illusory, a result of the adversarial system's greater public visibility and wide- spread acceptance ofplea bargaining. Finally, the article addresses burden of proof issues, plus specific provisions of the Federal Rules of Evidence: harm- less error, limiting instructions, relevance, character evidence, hearsay, expert witnesses, and various privileges and exclusionary rules. He concludes that American evidence law, rather than simply sacrificing efficiency in order to protect noneconomic values, is actually quite efficient and possibly superior to its Continental, inquisitorial counterparts; but a number of reforms are sug- gested. The law of evidence is the body of rules that determines what, and how, information may be provided to a legal tribunal that must resolve a factual dispute. The importance of the accurate resolution of such disputes to an economically efficient system of law has been discussed at length,1 but the * Chief Judge, U.S. Court of Appeals for the Seventh Circuit; Senior Lecturer, University of Chicago Law School. I thank Elizabeth Beetz, Susan Burgess, Brian Bufler, Dimitri Karcazes, Anup Malani, Kenneth Murphy, and Andrew Swartz for excellent research assistance; Ronald Al- len, Gary Becker, Andrew Daughety, Gertrud Fremling, Bruce Kobayashi, Richard Lempert, Erzo Luttmer, Eric Posner, Jennifer Reinganum, Michael Saks, Suzanne Scotchmer, Steven Shavell, Stephen Stigler, Cass Sunstein, and participants in the University of Chicago's Seminar on Rational Models in the Social Sciences for many very helpful comments on a previous draft; and Tomas Philipson and Sherwin Rosen for enlightening conversations on the subject matter of the article. 1. See, e.g., Louis Kaplow, Accuracy in Adjudication, in I THE NEW PALGRAVE DICTIONARY OF ECONOMICS AND THE LAW 1 (Peter Newman ed., 1998); Louis Kaplow, The Value of Accuracy in Adjudication: An Economic Analysis, 23 J. LEGAL STUD. 307 (1994); Richard A. Posner, An 1477

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