Progress Is Our Only Product: Legal Reform and the Codification of Evidence

Abstract

Twentieth-century reform of the American law of evidence was initially premised on the ideals of legal progressivism, ideals splintered by American legal realism. In preparing the American Law Institute's Model Code of Evidence from 1939 to 1942, Harvard Law School professor Edmund M. Morgan attempted to reconstitute the framework of reform in light of the challenge of legal realism. The Model Code was based on granting greater discretion to the trial judge and changing the goals of the trial from a search for truth to a “rational” resolution of disputes. In large part due to these apparently radical and “corrosive” changes, the Model Code failed to win professional support and was not adopted by any state. The structure of the Model Code was used for the two subsequent evidence codification efforts, the Uniform Rules of Evidence and the Federal Rules of Evidence. These codification efforts found greater academic favor in part because they fit within the post-World War II jurisprudence of reasoned elaboration. The Federal Rules also enjoyed extraordinary professional favor because the drafters explicitly affirmed truth as the goal of the rules. The irony is that the framework of the Federal Rules, since they are based on the Model Code, contradicts this message.