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Judges and juries are frequently called upon to evaluate a party's actions in retrospect—with the benefit of hindsight. Traditionally, courts and scholars have been understandably wary about how hindsight bias influences verdicts, focusing on how to keep outcome information away from jurors and how to minimize its influence on adjudication. But outcome information can be probative evidence: Bad outcomes can be indicative of bad decisionmaking. In this Essay, I aim to rehabilitate the use of outcome information by conceptualizing it as a new category of evidence: hindsight evidence. First, I develop a framework for deciding how much weight to afford hindsight evidence and whether it should be admitted to a jury under Rule 403, which requires judges to weigh probative value against prejudicial impact. As for relevance and probative weight, I show that hindsight evidence is probative to the extent that facts supporting one party's theory of the case have a greater tendency to generate that outcome than facts supporting the other party's theory. As for prejudice, I review the research on hindsight bias and the factors that mitigate its impact. Finally, I apply this framework to four paradigmatic examples from diverse areas of the law—civil rights, contracts, special education law, and civil procedure—where courts have disagreed about whether to consider hindsight evidence. Ultimately, I conclude that a deeper theoretical understanding of how hindsight evidence operates will allow courts to embrace its value more readily.

Public apathy over climate change is often attributed to a deficit in comprehension and to limits on technical reasoning. However, evidence suggests that individuals with the highest degrees of science literacy and technical reasoning capacity are not the most concerned about climate change and are the most culturally polarized. Seeming public apathy over climate change is often attributed to a deficit in comprehension. The public knows too little science, it is claimed, to understand the evidence or avoid being misled 1 . Widespread limits on technical reasoning aggravate the problem by forcing citizens to use unreliable cognitive heuristics to assess risk 2 . We conducted a study to test this account and found no support for it. Members of the public with the highest degrees of science literacy and technical reasoning capacity were not the most concerned about climate change. Rather, they were the ones among whom cultural polarization was greatest. This result suggests that public divisions over climate change stem not from the public’s incomprehension of science but from a distinctive conflict of interest: between the personal interest individuals have in forming beliefs in line with those held by others with whom they share close ties and the collective one they all share in making use of the best available science to promote common welfare.

As trademark law is currently litigated and understood, a plaintiff may succeed on an infringement claim by showing that (1) it owns a valid trademark, and (2) the defendant used a mark in commerce that is likely to confuse consumers into thinking that the plaintiff's and defendant's products come from the same source. We argue that this conventional understanding of the cause of action is missing an element: The plaintiff should also be required to show that the confusion arises from protectable features of the plaintiff's trademark. Without this \"causal tracing\" requirement, plaintiffs can effectively claim exclusive rights to features that the law allows anyone to use, such as functional features or generic terms. Eliding the link between protectable features and confusion can hinder competition and undermine the purposes of trademark law.

Expressive theories of law assert that law has effects on behavior beyond simple deterrence. This Note tests legal expressivism by analyzing how seatbelt use has changed in response to differing state seatbelt laws. This Note separates the effects of the laws themselves from the effects of changing enforcement levels and finds that the laws have a robust effect on seatbelt use, even controlling for convictions or citations issued. Additionally, this Note finds that a highly publicized seatbelt law in one state can affect seatbelt use in other states. These findings support an expressive function of law. [PUBLICATION ABSTRACT]