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IN his evidence article, Judge Richard Posner uses a thick version of rational choice theory,2 coupled with a relentless belief in the ex ante effects of evidence rules. This combination entails implicit assumptions about the pervasive knowledge of the rules among the general population, and about the friction-free willingness of actors to change customary ways of doing things in order to obtain an advantage, that are sometimes rather unrealistic.3 As might be expected, Judge Posner also brings to his study of evidence law a sensitivity to costs, trade-offs, and substitutions. I question whether Posner's rational choice, ex ante perspective is the best starting point when drawing inferences about the issues

Grand Perspectives on Evidence Law