Evidence Scholars and the New Evidence Scholarship

The first place I heard about “evidence scholars” or “the new evidence scholarship” was from Kaye (1988) in January 2022.^[1] I’ve long been interested in evidence and was happy to hear about “evidence scholars”. This article contains my notes on this field of scholarship.

Kaye cited Lempert for the term, and so Lempert is who I turned my attention to next. His article “The New Evidence Scholarship: Analyzing the Process of Proof” was published in 1986. I haven’t been able to access it yet but the first page is available online. He mentions the field of scholarship focusing on evidence was revitalized in the 1970s when the Federal Rules of Evidence were introduced. There was a change in focus from the “rules of evidence” to the “process of proof”.^[2]

Wanting more information and being unable to read all of Lempert (1986), I went looking for an article published recently on this topic. That’s when I found Welch (2020). Welch attributes information to Lempert when drawing distinctions between the 1st, 2nd, and 3rd waves of “evidence scholars”.

1st Wave: Pre-1970’s; Wigmore, Maguire, McCormick, Morgan, and others

2nd Wave: 1970’s; when the Federal Rules of Evidence were introduced

3rd Wave: (unclear), critical school

Welch notes:

1 – Probabilities in courtrooms:^{[3, p.2]}
– Preponderance of evidence = probability over 50%
– Clear and convincing evidence = c.75%
– Beyond a reasonable doubt = 90-95%

2 – Critics of mathematical models of evidence and advocates of relative plausibility theory vs legal probabilists and Bayesian decision theorists

“Opposed to the pro attitudes of both legal probabilists and Bayesian decision theorists are scholars who
criticise mathematical models of evidence.”
Welch (2020)^{[3, p.2]}

3 – Relevant scholarship on the compatibility between groups from point 2 above.^{[3, pp.2-3]}

4 – the purpose of the paper is articulated (how to reconcile oppositions)

Here’s a table of contents for Welch (2020):

1 – Introduction (pp.1-3)

2 – Challenging the new evidence scholarship (pp.3-8)

2.1 – Legal probabilism

2.2 – Bayesian decision theory

2.3 – Relative plausibility theory

3 – Renewing relative plausibility (pp.8-14)

3.1 – Plausibility as primitive

3.2 – Relative plausibility as incomplete

4 – Toward normative completeness (pp.14-17)

5 – Potential Objections (pp.17-18)

6 – Conclusions (p.18)

References:

[1] – Kaye, D. H. “WHAT IS BAYESIANISM? A GUIDE FOR THE PERPLEXED.” Jurimetrics, vol. 28, no. 2, American Bar Association, 1988, pp. 161–77, http://www.jstor.org/stable/29762062. Accessed 16 Jan. 2022.

[2] – Lempert, Richard O. The New Evidence Scholarship: Analyzing the Process of Proof, 66 B.U. L. Rev. 439 (1986). https://heinonline.org/HOL/LandingPage?handle=hein.journals/bulr66&div=23&id=&page=. Accessed 16 Jan. 2022.

[3] – Welch, J. R. Rebooting the new evidence scholarship. The International Journal of Evidence & Proof, 136571272094332 (2020). https://journals.sagepub.com/doi/abs/10.1177/1365712720943329. Accessed 16 Jan. 2022.

[4] – Jackson, John D. “Analysing the New Evidence Scholarship: Towards a New Conception of the Law of Evidence.” Oxford Journal of Legal Studies, vol. 16, no. 2, Oxford University Press, 1996, pp. 309–28, http://www.jstor.org/stable/764746. Accessed 16 Jan. 2022.