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Which Evidence Law? A Response to Schauer

As usual, Frederick Schauer raises profound issues in his insightful essay, On the Supposed Jury-Dependence of Evidence Law. Schauer is surely right that judges are not always as smart as they think they are, that judges are subject to many common cognitive deficiencies (including many of the same deficits as juries), and that judges, like other mortals, often overestimate their abilities to overcome their limitations. These observations strongly support Schauer’s conclusion that judges should be restricted by at least some rules of evidence, even when they hear cases without juries. These points are both timely and important, because of recent trends in courts away from jury trials and among theorists against exclusionary evidence rules and towards free proof.