Article of Interest: Kenneth Klein on Hillman

Kenneth S. Klein of California Western School of Law recently posted:

The Enduring Quality of an Alluring Mistake: Why One Person’s Intentions Cannot — And Never Could — Be Evidence of Another Person’s Conduct

on SSRN (click the title to go to the abstract).  The piece adroitly breaks down the epic case of Mutual Life Ins. Co. v. Hillmon, arguing that an analytical error in the 1892 case still reverberates in FRE 803(3) rulings today.  Worth reading for those interested in this familiar dilemma. 

An ancillary point — Klein references four law review articles dedicated to early criticism of the Hillmon case (spanning 1893 to 1955).  Three of the four appeared in the Harvard Law Review — the fourth “fell” to Virginia.  Hard to imagine a time when doctrinal Evidence scholarship was jumping out of the HLR submission pile!