Gustavo Ribeiro (American University Washington College of Law) has posted Beyond Exclusion: Epistemic Nudging in the Courtroom, 21 FIU L. Rev. __ (forthcoming 2027) on SSRN. Here is the abstract:
Evidence law is dominated by an exclusionary logic. When jurors are thought likely to reason poorly, the law responds by withholding information — excluding evidence deemed unfairly prejudicial, overly confusing, or potentially misleading — rather than by improving the conditions under which jurors reason. This Article argues that this orientation reflects an unexamined commitment to epistemic paternalism: the institutional practice of intervening in another’s inquiry for epistemic benefit, without consultation or consent. Understanding evidence law as a regime of epistemic paternalism clarifies the structure of core evidentiary doctrines, exposes their contested empirical foundations, and reveals a persistent tension between exclusionary doctrine and the law’s own commitments to jurors’ intellectual autonomy.
In place of exclusion, this Article develops a competing framework centered on epistemic nudges: subtle, empirically grounded interventions designed to improve belief formation and decision-making without foreclosing access to evidence. Drawing on cognitive psychology, decision science, and social epistemology, the Article proposes concrete examples that restructure the epistemic architecture of trial rather than narrowing the evidentiary record. By defending epistemic nudging as a more precise, less autonomy-restrictive, and more empirically defensible mode of epistemic regulation, the Article reframes evidence law as a project of epistemic design rather than primarily one of exclusion.
Highly Recommended!
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Lawrence Solum