Bauer finds the difference between Judges Easterbrook and Posner (and the difference between Crawford and the instant Wisconsin struggle) to be their consideration of legislative motive.
Maybe. But I think there’s (perhaps also) a difference between the quality of the factual record. Too little has been made, I think, of the role of the trial court in actually weighing evidence. The trial court found the evidence submitted in Indiana wanting, and the trial court found the evidence submitted in Wisconsin persuasive … but most of the analysis thus far has either assessed the evidence as if it were the same, or as if the evidence actually presented to the trial court (and subject to cross-examination) didn’t matter. Perhaps this is related to the increasing (and not salutary) tendency of the appellate courts to purport to do their own factfinding.