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19 Cardozo L. Rev. 1585 (1997-1998)
Cost-Benefit Analysis, Unintended Consequences, and Evidentiary Policy: A Critique and a Rethinking of the Application of a Single Set of Evidence Rules to Civil and Criminal Cases

handle is hein.journals/cdozo19 and id is 1609 raw text is: COST-BENEFIT ANALYSIS, UNINTENDED CONSEQUENCES, AND EVIDENTIARY POLICY: A CRITIQUE AND A RETHINKING OF THE APPLICATION OF A SINGLE SET OF EVIDENCE RULES TO CIVIL AND CRIMINAL CASES Myrna S. Raeder* INTRODUCTION My contribution to the January 1997 panel of the Evidence Section of the American Association of Law Schools (AALS) was scheduled to be in the form of comments on two evidentiary papers written from a law and economics perspective. I was specifically chosen as a caveator, one who is not a member of the choir. Indeed, those who know my work would no doubt be sur- prised to learn that in a nearly forgotten past, I had spent the bet- ter part of a year working with an economist from the Harvard Business School critiquing a sophisticated damage model in a mammoth antitrust action. However, some might suspect that this experience, following practice and teaching in the criminal law arena, motivated my return to academia and to a world of eviden- tiary and procedural courses dominated by values based primarily on fairness rather than efficiency. I approached my task with two partially competing biases: 1) it is always useful to know the results of any cost-benefit analysis when trying to choose among alternatives;' and 2) that utility should never be the sole justification for evidentiary policy be- cause process values, including fairness, may be denigrated in a way that has an unexpected negative impact on the justice system * Professor of Law, Southwestern University School of Law. 1 Recognizing that cost-benefit analysis may sometimes support positions reached principally on grounds of fairness, I have not hesitated to construct such arguments, though only explicitly in an article not addressing any evidentiary issue. See Myrna S. Raeder, Gender and Sentencing: Single Moms, Battered Women, and Other Sex-Based Anomalies in the Gender-Free World of the Federal Sentencing Guidelines, 20 PEPP. L. REV. 905, 959 (1993). However, I have never relied solely, or even primarily, on this methodology. 1585

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