Vanderbilt Law Review

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Prior to the eighteenth century, cartographers would often fill uncharted areas of maps with sea monsters, other artwork, or even rank speculation-a phenomenon labeled "horror vacui," or fear of empty spaces. For example, in Paolo Forlani's world map of 1565, a yet- to-be-discovered southern continent was depicted with anticipated mountain chains and animals. The possible explanations for horror vacui are varied, but one reason may have been a desire "to hide [the mapmakers'] ignorance." Not until "maps began to be thought of as more purely scientific instruments . . . [did] cartographers . . . restrain their concern about spaces lacking decoration in the interest of presenting their work as modern and professional."

The law of evidence shares something of a kinship with those old maps. The Federal Rules of Evidence ("FRE"), perhaps the most successful codification project in the history of American law, have advanced the field in incalculable ways, but to treat them as the last word would be a grave mistake. For one thing, the FRE have significant gaps, empty spaces in need of exploration. The most obvious example is the law of privileges, where Congress rejected the rule writers' proposed codification in favor of retaining the common law. More fundamentally, the FRE are almost entirely about admissibility, the sifting of existing evidence. They say little, if anything, about how evidence is weighed, and they do not typically reflect a concern for party incentives to collect or preserve evidence in the first place.

The FRE also have their metaphorical sea monsters-elements that make the law appear complete but, in reality, are merely gap- filling myths and traditions. The rules of evidence codified in the FRE are old. Our understanding of psychology, epistemology, and other fields has changed immeasurably since many of the rules were formulated, and perhaps it is time we updated the evidence rules for the twenty-first century.

To mark the fiftieth anniversary of the FRE, the goal of this Vanderbilt Law Review Symposium was to challenge a new generation of evidence scholars both to identify the gaps in the FRE as well as to critique existing ones that may be debunked, outdated, or otherwise problematic vestiges of the past. I charged the participants to be bold, to think outside the box, and to consider what the FRE could be for the next fifty years.

The contributions that follow offer a remarkably creative and varied set of responses to this charge.

Included in

Evidence Commons