Vanderbilt Law Review

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Author's Note: These two excerpts are from the author's preliminary draft of his proposed revision of the judicial notice chapter of Wigmore on Evidence. The excerpts are submitted for publication in this Edmund M. Morgan issue of the Vanderbilt Law Review for two reasons: First, because of the important role played by Professor Morgan in the recent development and articulation of the law of judicial notice and, second, because Professor Morgan and Dean Wigmore stand at opposite poles in the argument over judicial notice. At least they do with respect to one significant particular. They do not differ with respect to the application of the doctrine to "law." Nor do they reveal a difference with respect to so-called "jury notice." Their difference relates to judicial notice of "facts." Here Wigmore, following Thayer, insists that judicial notice is solely to save time where dispute is unlikely and that a matter judicially noticed is therefore only "prima facie," or rebuttable, if the opponent elects to dispute it. It is express in Thayer and implicit in Wigmore that (perhaps because the matter is rebuttable) judicial notice may be applied not only to indisputable matters but also to matters of lesser certainty. Morgan on the other hand defines judicial notice more narrowly, and his consequences follow from his definition. He limits judicial notice of fact to matters patently indisputable. And his position is that matters judicially noticed are not rebuttable.

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