A Legisprudential Analysis of Evidence Codification: Why Most Rules of Evidence Should Not Be Codified - But Privilege Law Should Be

In this article, I will suggest standards for use in assessing a proposed codification. Although the standards I will identify are useful for evaluating a proposed codification of privilege law, they are also more generally applicable. Indeed, I will use them to examine the codification of evidence law in general. First, I will ask whether, as a normative matter, the law of evidence should be codified. I will then focus on the individual rules of evidence, most notably the privilege rules, to draw conclusions about whether those standards are met.