![handle is hein.journals/lawprisk2 and id is 1 raw text is: Law, Probability and Risk (2003) 2, 1-7
The Error of Expected Loss Minimization
RONALD J. ALLENt
John Henry Wigmore Professor, Northwestern University School of Law.
Northwestern University School of Law, 357 E. Chicago Ave., Chicago, IL 60611,
USA
[Received on 4 September 2002; revision received on 6 October 2002; accepted on 8
October 2002]
Considerable effort has been expended by legal scholars attempting to apply formal
approaches such as Bayes' Theorem or decision theory to various aspects of the litigation
process. These efforts consistently fail adequately to account for the reality of the
phenomenon being investigated. Most recently, Professor Kaye attempted to give another
decision-theoretic account of the standard of persuasion in civil cases. This attempt fails
formally, as it requires that litigation involve single issues for decision, which is virtually
never the case. It fails pragmatically because it ignores all the surrounding context of
the decision rule that colours and gives meaning to the decision rule. Jury trials cannot
plausibly be analysed as designed to maximize the expected return to jurors.
Kewords: burden of persuasion; decision theory; expected utility: errors in litigation;
equality; jury trials; algorithms; formalisms; formal reasoning.
The inaugural issue of this journal contained an article by Professor David H. Kaye
(Kaye, 2002) closely scrutinizing a few passages from a previous edition of my course
book on Evidence (Allen et al., 1997).1 1 am pleased to have contributed even indirectly to
the success of the journal's efforts, and even more pleased to have been the grain of sand
stimulating yet another pearl of legal scholarship from Professor Kaye.2 I cannot resist,
though, the effort of a little polishing.
Professor Kaye's article suggests that there is an opposition between three different
conceptions of the policy underlying standards of persuasion: error equalization, error
minimization, and expected loss minimization. I do not see the opposition this way, even
though the passage cited by Professor Kaye plausibly could be read as he does. Rather,
I see the opposition between error administration and expected error administration, i.e.
between the first two lumped together and the third. Professor Kaye is correct that error
t E-mail: rjallen@northwestern.edu
1 The current edition (Allen et al., 2002) contains some but not all of the scrutinized passages, and omits the
ones technically troubling to Professor Kaye concerning the implications of his previous work on error rates and
expected losses.
2 The ongoing discussion between Professor Kaye and myself about the relationship between formal reasoning
and the legal process has been characterized as 'increasingly vituperative'. Murphy , 2001, at 577, n. 24.
Personally, I have found it increasingly invigorating, fruitful, and enlightening. External observations may differ,
of course, but I want to be clear that I have the highest regard and admiration for Professor Kaye's work
even if I disagree with some of the implications he draws from it. If anything I have written bears any other
reasonable interpretation than my vigorous disagreement with some of those implications and my explanations
for so disagreeing, I wish to disavow such remarks and express my apologies.
@ Oxford University Press 2003. all rights reserved](ViewImageLocal?handle=hein.journals/lawprisk2&div=1&collection=&method=preview&ext=.png&size=3)
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