Analyzing 'The Politics of [Evidence] Rulemaking'

Eileen A. Scallen, William Mitchell College of Law


As the 2001 Chair of the Evidence Section of the American Association of Law Schools, I was responsible for organizing the panel on "The Politics of [Evidence] Rulemaking." I put together a panel consisting of former members of the Federal Advisory Committee on the Rules of Evidence and its most vocal critic. I asked them to address 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? Part I of this 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 by the Professors Rice and Broun.