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Surprise Vs. Probability As A Metric For Proof, Edward K. Cheng, Matthew Ginther Mar 2019

Surprise Vs. Probability As A Metric For Proof, Edward K. Cheng, Matthew Ginther

Edward Cheng

In this Symposium issue celebrating his career, Professor Michael Risinger in Leveraging Surprise proposes using "the fundamental emotion of surprise" as a way of measuring belief for purposes of legal proof. More specifically, Professor Risinger argues that we should not conceive of the burden of proof in terms of probabilities such as 51%, 95%, or even "beyond a reasonable doubt." Rather, the legal system should reference the threshold using "words of estimative surprise" -asking jurors how surprised they would be if the fact in question were not true. Toward this goal (and being averse to cardinality), he suggests categories such …


Standards Of Proof In Civil Litigation: An Experiment From Patent Law, David L. Schwartz, Christopher B. Seaman Sep 2015

Standards Of Proof In Civil Litigation: An Experiment From Patent Law, David L. Schwartz, Christopher B. Seaman

Christopher B. Seaman

Standards of proof are widely assumed to matter in litigation. They operate to allocate the risk of error between litigants, as well as to indicate the relative importance attached to the ultimate decision. But despite their perceived importance, there have been relatively few empirical studies testing jurors’ comprehension and application of standards of proof, particularly in civil litigation. Patent law recently presented an opportunity to assess the potential impact of varying the standard of proof in civil cases. In Microsoft Corp. v. i4i Limited Partnership, the Supreme Court held that a patent’s presumption of validity can only be overcome by …


Unreasonable Doubt: Warren Hill, Aedpa, And The Unconstitutionality Of Georgia's Reasonable Doubt Standard, Adam Lamparello Jan 2015

Unreasonable Doubt: Warren Hill, Aedpa, And The Unconstitutionality Of Georgia's Reasonable Doubt Standard, Adam Lamparello

Adam Lamparello

Georgia’s “beyond a reasonable doubt” standard for determining intellectual disability has led to an absurd—and arbitrary—result. A Georgia state court held that defendant Warren Hill was intellectually disabled, yet still sentenced Hill to death. Seven experts—and the court—deemed Hill disabled under a preponderance of the evidence standard. He remains on death row, however, because Georgia’s “preposterous burden of proof” requires that intellectual disability be proved beyond a reasonable doubt, a standard experts have said is nearly impossible to satisfy. It “effectively limits the constitutional right protected in Atkins,” and creates a conditional, not categorical, ban.


Burden Of Proof, Prima Facie Case And Presumption In Wto Dispute Settlement, John J. Barceló Iii Dec 2014

Burden Of Proof, Prima Facie Case And Presumption In Wto Dispute Settlement, John J. Barceló Iii

John J. Barceló III

The essay maintains that the WTO Appellate Body's concepts and terminology concerning a claimant's burden of proof-the concepts of prima facie case, presumption, and burden shifting-are disturbingly ambiguous and potentially misleading. This is so whether one thinks of these terms from either a common law or a civil law perspective. In the face of the current ambiguity, a future panel might understand the AB's prima facie case concept to require an overwhelming level of proof from the claimant. On the other hand, a different panel might allow a rather weak level of claimant's proof to meet the prima facie requirement, …


Punishment Without Culpability, John F. Stinneford Dec 2014

Punishment Without Culpability, John F. Stinneford

John F. Stinneford

For more than half a century, academic commentators have criticized the Supreme Court for failing to articulate a substantive constitutional conception of criminal law. Although the Court enforces various procedural protections that the Constitution provides for criminal defendants, it has left the question of what a crime is purely to the discretion of the legislature. This failure has permitted legislatures to evade the Constitution’s procedural protections by reclassifying crimes as civil causes of action, eliminating key elements (such as mens rea) or reclassifying them as defenses or sentencing factors, and authorizing severe punishments for crimes traditionally considered relatively minor. The …


New Explorations In Culture And Crime: Definitions, Theory, Method, Kenneth B. Nunn Nov 2014

New Explorations In Culture And Crime: Definitions, Theory, Method, Kenneth B. Nunn

Kenneth B. Nunn

Culture affects criminal law in at least two key ways. First, culture and crime symbiotically define each other. Second, culture helps explain which courtroom narratives will be successful, and which will not. Culture influences who will be arrested, charged, convicted, and what sentence they will receive. Indeed, the invisible hand of culture drives the process of criminalization and helps to determine which acts we will sanction through criminal statutes.


An Administrative "Death Sentence" For Asylum Seekers: Deprivation Of Due Process Under 8 U.S.C. § 1158(D)(6)'S Frivolousness Standard, E. Lea Johnston Oct 2014

An Administrative "Death Sentence" For Asylum Seekers: Deprivation Of Due Process Under 8 U.S.C. § 1158(D)(6)'S Frivolousness Standard, E. Lea Johnston

E. Lea Johnston

In 1996, Congress amended the Immigration and Nationality Act by providing a new sanction for asylum seekers: if an immigration judge makes a finding that a noncitizen has knowingly filed a fraudulent asylum application, then that person is permanently ineligible for immigration benefits. For eleven years, immigration judges, the Board of Immigration Appeals, and federal courts have imposed and reviewed this sanction without specifying a burden of proof. When it did act to fill the statutory gap in April 2007, the Board held that the government must prove the elements of the statute by a preponderance of the evidence. This …


An Allegory Of The Cave And The Desert Palace, William R. Corbett May 2013

An Allegory Of The Cave And The Desert Palace, William R. Corbett

William R. Corbett

No abstract provided.


Mcdonnell Douglas, 1973-2003: May You Rest In Peace?, William Corbett May 2013

Mcdonnell Douglas, 1973-2003: May You Rest In Peace?, William Corbett

William R. Corbett

No abstract provided.


The Imperative Of Instructing On Pretext: A Comment On William J. Volmer's Pretext In Employment Discrimination Litigation. Mandatory Instructions For Permissible Inferences?, C. Elizabeth Belmont Jan 2013

The Imperative Of Instructing On Pretext: A Comment On William J. Volmer's Pretext In Employment Discrimination Litigation. Mandatory Instructions For Permissible Inferences?, C. Elizabeth Belmont

C. Elizabeth Belmont

No abstract provided.


Evidence, Probability, And The Burden Of Proof, Ronald J. Allen, Alex Stein Dec 2012

Evidence, Probability, And The Burden Of Proof, Ronald J. Allen, Alex Stein

Alex Stein

This Article analyzes the probabilistic and epistemological underpinnings of the burden-of-proof doctrine. We show that this doctrine is best understood as instructing factfinders to determine which of the parties’ conflicting stories makes most sense in terms of coherence, consilience, causality, and evidential coverage. By applying this method, factfinders should try—and will often succeed—to establish the truth, rather than a statistical surrogate of the truth, while securing the appropriate allocation of the risk of error. Descriptively, we argue that this understanding of the doctrine—the “relative plausibility theory”—corresponds to our courts’ practice. Prescriptively, we argue that the relative-plausibility method is operationally superior …


Carga De La Prueba, Felipe Marín Aug 2012

Carga De La Prueba, Felipe Marín

Felipe Marín Verdugo

No abstract provided.


Standard Of Proof For Patent Invalidation In The U.S. And Japan, Yoshinari Oyama Jun 2012

Standard Of Proof For Patent Invalidation In The U.S. And Japan, Yoshinari Oyama

Yoshinari Oyama

In June 2011, the U.S. Supreme Court confirmed the standard of proof for patent invalidation in Microsoft Corp. v. i4i Limited Partnership, et al. The Court held that an invalidity defense to be proven by clear and convincing evidence rather than by a preponderance of the evidence and that burden is constant and never changes. Compared to the U.S. patent system, there is no heightened standard of proof required for patent invalidation in infringement suits in Japanese courts and the invalidation rate is high especially after Kilby cas in 2000, where the Japanese Supreme Court decided that a patentee could …


Cross-Cultural Readings Of Intent: Form, Fiction, And Reasonable Expectations, Deborah Waire Post Jan 2012

Cross-Cultural Readings Of Intent: Form, Fiction, And Reasonable Expectations, Deborah Waire Post

Deborah W. Post

No abstract provided.


Climate Change And Sea Level Rise - German Law And The Kivalina Case, Will B. Frank Mar 2011

Climate Change And Sea Level Rise - German Law And The Kivalina Case, Will B. Frank

Will B. Frank

The article discusses the question of nuisance-liability for sea level-rise caused by climate change under German Civil Law.


Other Civil Rights Decisions In The October 2005 Term: Title Vii, Idea, And Section 1981(Eighteenth Annual Supreme Court Review), Eileen Kaufman Mar 2011

Other Civil Rights Decisions In The October 2005 Term: Title Vii, Idea, And Section 1981(Eighteenth Annual Supreme Court Review), Eileen Kaufman

Eileen Kaufman

No abstract provided.


Utilizing Rule Based Bias Filtering To Standardize Reasonable Doubt And Ameliorate Cognitive Biases, Yali Corea-Levy Aug 2010

Utilizing Rule Based Bias Filtering To Standardize Reasonable Doubt And Ameliorate Cognitive Biases, Yali Corea-Levy

Yali Corea-Levy

The standard of “proof beyond a reasonable doubt” is meant to, at least in part, ensure that the government meets the highest practical standard of proof possible before imposing a criminal penalty on a person. This article argues that the standard, as currently applied in trial settings, does not succeed in being the vanguard of prudence and equity it was meant to be. Specifically, it falls short because of its vagueness coupled with our cognitive peculiarities, including our tendency to feel certain about facts more easily than we should. This article describes the problem and ultimately suggests a relatively simple …


Toward Procedural Optionality: Private Ordering Of Public Adjudication, Robert J. Rhee Jul 2009

Toward Procedural Optionality: Private Ordering Of Public Adjudication, Robert J. Rhee

Robert Rhee

Private resolution and public adjudication of disputes are commonly seen as discrete, antipodal processes. There is a generally held understanding of the dispute resolution processes. The essence of private dispute resolution is that the parties can arrange the disputed rights and entitlements per agreement and without judicial intervention. In public adjudication, however, the sovereign mandates the substantive and procedural laws to be applied, many of which cannot be changed by either a party’s unilateral decision or both parties’ mutual consent. Neither approach allows a party an option to unilaterally alter important aspects of the process, such as the standards of …


The Irresistible Force, Bruce A. Antkowiak Sep 2008

The Irresistible Force, Bruce A. Antkowiak

Bruce A Antkowiak

This article calls for the reformation of the doctrine that permits a legislature to assign to a defendant the burden of proving an issue in a criminal case to avoid conviction. It argues that such a doctrine violates the basic norms of the Constitution and the “jury right” that is at its core. That right includes the institution of the jury trial, the presumption of innocence and the burden on the government to prove its case beyond a reasonable doubt. It is violated by such a burden assignment just as the Apprendi line of cases holds that the shifting of …


Better That Ten Guilty Men..., Alexander Volokh Nov 2006

Better That Ten Guilty Men..., Alexander Volokh

Alexander Volokh

Abridgment of the law review article "n guilty men," 146 U. Pa. L. Rev. 173 (1997).


Environmental Policy Law In The 1980'S: Shifting Back The Burden Of Proof, Martin H. Belsky Jan 1984

Environmental Policy Law In The 1980'S: Shifting Back The Burden Of Proof, Martin H. Belsky

Martin H. Belsky

This article will describe the legal and policy burdens of proof applicable to environmental decision-making and the shifts that have occurred in allocating those burdens. The initial change occurred when common-law principles gave way to a pro-protection legal framework established during an "environmental era." The second change occurred more recently when a new environmental policy law agenda was set. Through regulatory reforms, policy alterations, statutory proposals and budgetary and personnel actions, the federal executive is now seeking to develop a more pro-development structure and again place the burden of proof on those seeking to secure government action to protect the …