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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 …
Standards Of Proof In Japan And The United States, Kevin M. Clermont
Standards Of Proof In Japan And The United States, Kevin M. Clermont
Cornell Law Faculty Publications
This article treats the striking divergence between Japanese and U.S. civil cases as to standards of proof. The civil-law Japan requires proof to a high probability similar to the criminal standard, while the common-law United States requires only that the burdened party prove the fact to be more likely than not. This divergence not only entails great practical consequences, but also suggests a basic difference in attitudes toward the process of trial.
As to the historical causation of the difference in standards of proof, civil-law and common-law standards diverged in the late eighteenth century, probably because of one system’s French …
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 …