Evidence Commons^™

Inefficient Evidence, Alex Stein

Alex Stein

Why set up evidentiary rules rather than allow factfinders to make decisions by considering all relevant evidence? This fundamental question has been the subject of unresolved controversy among scholars and policymakers since it was raised by Bentham at the beginning of the nineteenth century. This Article offers a surprisingly straightforward answer: An economically minded legal system must suppress all evidence that brings along a negative productivity-expense balance and is therefore inefficient. Failure to suppress inefficient evidence will result in serious diseconomies of scale. To operationalize this idea, I introduce a “signal-to-noise” method borrowed from statistics, science, and engineering. This method …

The New Doctrinalism: Implications For Evidence Theory, Alex Stein

Alex Stein

This Article revisits and refines the organizing principles of evidence law: case specificity, cost minimization, and equal best. These three principles explain and justify all admissibility and sufficiency requirements of the law of evidence. The case-specificity principle requires that factfinders base their decisions on the relative plausibility of the stories describing the parties’ entitlement–accountability relationship. The cost-minimization principle demands that factfinders minimize the cost of errors and the cost of avoiding errors as a total sum. The equal-best principle mandates that factfinders afford every person the maximal feasible protection against risk of error while equalizing that protection across the board. …

Understanding The Law Of Evidence Through The Lens Of Signal-To-Noise, Alex Stein

Alex Stein

No abstract provided.

The Admissibility Of Bayesian Likelihood Ratios, Robert Sanger

Robert M. Sanger

As someone once said, “there are lies, damned lies and statistics.” Anyone who has tried a case where statistics are presented to the jury knows how powerful statistics can be. Jurors are generally not versed in statistics and are vulnerable to being misled. Ironically, judges may not be much better at identifying valid statistical analyses as opposed to bogus ones.

In this Criminal Justice column we will look at statistical analysis and its place in the courtroom. We will look at a recent decision of the British Courts and the implications for that type of thinking on American jurisprudence. To …

Are People Probabilistically Challenged? Book Review Of Daniel Kahneman, Thinking, Fast And Slow (2011), Alex Stein

Alex Stein

Daniel Kahneman’s recent book, Thinking, Fast and Slow, is a must-read for any scholar and policymaker interested in behavioral economics. Thus far, behavioral economists did predominantly experimental work that uncovered discrete manifestations of people’s bounded rationality: representativeness, availability, anchoring, overoptimism, base-rate neglect, hindsight bias, loss aversion, and other misevaluations of probability and utility. This work has developed no causal explanations for these misevaluations. Kahneman’s book takes the discipline to a different level by developing an integrated theory of bounded rationality’s causes and characteristics. This theory holds that humans use two distinct modes of reasoning, intuitive (System 1) and deliberative (System …

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 …

The “Ensuing Loss” Clause In Insurance Policies: The Forgotten And Misunderstood Antidote To Anti-Concurrent Causation Exclusions, Chris French

Christopher C. French

As a result of the 1906 earthquake and fire in San Francisco which destroyed the city, a clause known as the “ensuing loss” clause was created to address concurrent causation situations in which a loss follows both a covered peril and an excluded peril. Ensuing loss clauses appear in the exclusions section of such policies and in essence they provide that coverage for a loss caused by an excluded peril is nonetheless covered if the loss “ensues” from a covered peril. Today, ensuing loss clauses are found in “all risk” property and homeowners policies, which cover all losses except for …

Rethinking The Indefinite Detention Of Sex Offenders, Fredrick E. Vars

Fredrick E Vars

Thousands of sex offenders in the United States are being held indefinitely under civil commitment programs. The analysis in this Article suggests that none (or precious few) belong there. Specifically, in a large dataset, an instrument as good as the one most widely used by experts (the “Static-99”) could not identify even one sex offender who met the legal standards for commitment. Supplementing such instruments with additional information appears not to improve matters, so the failure of the instrument is profoundly disturbing. There are three possible responses: (1) improve instruments to meet existing standards; (2) lower the standards; and (3) …