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The Living Rules of Evidence

The jurisprudential evolution of evidence law is dead. At least, that’s what
we’re expected to believe. After all, it’s been forty-seven years since the
common law pedigree of evidence law came to an end in the United States.
Ushered in on the wings of a growing positivist movement, the enactment
of the Federal Rules of Evidence purported to quell judicial authority over
evidence law. Instead, committees, conferences, and members of Congress
assumed responsibility for regulating our evidentiary regime, thereby
capturing the evolution of evidence law in a single, transparent code. And as
with other transitions to positive law, perhaps that shift inherently suggested
that the Federal Rules of Evidence are “not a living organism” but simply a
“legal document” that “says what it says and doesn’t say what it doesn’t say.”