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The Silliness Of Magical Realism, Kevin M. Clermont
The Silliness Of Magical Realism, Kevin M. Clermont
Cornell Law Faculty Publications
Relative plausibility, even after countless explanatory articles, remains an underdeveloped model bereft of underlying theory. Multivalent logic, a fully developed and accepted system of logic, comes to the same endpoint as relative plausibility. Multivalent logic would thus provide the missing theory, while it would resolve all the old problems of using traditional probability theory to explain the standards of proof as well as the new problems raised by the relative plausibility model. For example, multivalent logic resolves the infamous ‘conjunction paradox’ that traditional probability creates for itself, and which relative plausibility tries to sweep under the rug.
Yet Professors Allen …
Common Sense On Standards Of Proof, Kevin M. Clermont
Common Sense On Standards Of Proof, Kevin M. Clermont
Cornell Law Faculty Publications
The law speaks clearly on the standards of proof, but listeners often misunderstand its words. This article tries, with some common sense and a modicum of multivalent logic, to explain how the law expects its standards to be applied, and then to show how the law thereby avoids such complications as the conjunction paradox.
First, in accordance with belief function theory, the factfinder should start at zero belief. Given imperfect evidence, the factfinder will end up retaining a fair amount of uncommitted belief. As evidence comes in, though, the factfinder will form a belief in the truth of the disputed …
A Comparative View Of Standards Of Proof, Kevin M. Clermont, Emily Sherwin
A Comparative View Of Standards Of Proof, Kevin M. Clermont, Emily Sherwin
Cornell Law Faculty Publications
In common-law systems, the standard of proof for ordinary civil cases requires the party who bears the burden of proof to establish by a preponderance of the evidence that the facts alleged are true. In contrast, the prevailing standard of proof for civil cases in civil-law systems is indistinguishable from the standard for criminal cases: the judge must be firmly convinced that the facts alleged are true. This striking difference in common-law and civil-law procedures has received very little attention from either civilian or comparative scholars.
The preponderance standard applied in common-law systems is openly probabilistic and produces, on average, …
Procedure's Magical Number Three: Psychological Bases For Standards Of Decision, Kevin M. Clermont
Procedure's Magical Number Three: Psychological Bases For Standards Of Decision, Kevin M. Clermont
Cornell Law Faculty Publications
So many procedural doctrines appear, after research and teaching, to trifurcate. An obvious example is that kind of standard of decision known as the standard of proof: what in theory might have been a continuum of standards divides in practice into the three distinct standards of preponderance of the evidence, clear and convincing evidence, and proof beyond a reasonable doubt. Other examples suggest both that I am not imagining the prominence of three and that more than coincidence is at work.
Part I of this essay describes the role of the number three in procedure, with particular regard to standards …