The creation and interpretation of evidence rules is a burgeoning area for evidence scholarship. Recent changes to federal evidence law, such as the addition of rules on the admissibility of a defendant's prior sexual conduct, and the amendments to the rules regarding expert testimony, have highlighted the political and controversial aspects of procedural rulemaking. Professor Scallen, Chair of the Evidence Section of the American Association of Law Schools, was responsible for organizing the panel on "The Politics of [Evidence] Rulemaking." The panel addressed the following questions: who should make the evidence rules-the judiciary, the legislature, the executive? What role should the practicing bar, law professors and the general public play in the creation of the rules of evidence? What is the proper function of the Federal Rules of Evidence Advisory Committee-to codify case law, to develop rules and amendments to respond to criticism of existing case law, or to develop solutions to evidentiary problems unforeseen by the original drafters? Are there special considerations that apply to evidence law that do not apply at least to the same degree, to other civil or criminal rules of procedure?
This Article examines the panel discussion and recent developments in evidence rulemaking. Part I of the article provides the context for the panel discussion-describing the development of the Federal Rules of Evidence to date and, in the process, revealing the growing contentiousness surrounding the Rules. Part II discusses the issues presented by the panelists as well as the articles appearing in this issue by Professors Rice and Broun.
Eileen A. Scallen,
Analyzing "The Politics of (Evidence) Rulemaking",
53 Hastings L.J. 843
Available at: https://repository.uchastings.edu/hastings_law_journal/vol53/iss4/4