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66 Case W. Res. L. Rev. 353 (2015-2016)
Trial by Traditional Probability, Relative Plausibility, or Belief Function

handle is hein.journals/cwrlrv66 and id is 377 raw text is: CASE WESTERN RESERVE LAW REVIEW - VOLUME 66 - ISSUE 2 - 2015 TRIAL BY TRADITIONAL PROBABILITY RELATIVE PLAUSIBILITY, OR BELIEF FUNCTION? Kevin M. Clermont ABSTRACT Ahnost incredible is that 1o one has ever formulated an adequate model for applying the standard of proof. What does the law call for? The usual formulation is that the factfinder must roughly test the findhig on a scale of likelihood. So, the findhig in a civil case must at least be more likely than not or, for the theoretically adventuresome, more than fifty percent probable. Yet everyone concedes that this form- ulation captures neither how human factfinders actually work nor, more surprisingly, how theory tells us that factfinders should work. An emerghig notion that the factfinder should compare the plahitiff's story to the defendant's story might be a step forward, but this relative plausibility conjecture has its problems. I contend instead that the mathematical theory of belief functions provides an alternative without those problems, and that the law in fact conforms to this theory. Under it, the standards of proof reveal themselves as instruc- tions for the factfinder to compare the affirmative belief in the finding to any belief in its contradiction, but only after setthig aside the range of belief that imperfect evidence leaves uncommitted. Accordingly, rather than requiring a civil case's elements to exceed fifty percent or comparing best stories, belief functions focus on whether the perhaps smallish imprecise belief exceeds its smallish imprecise contradiction. Belief functions extend easily to the other standards of proof. Moreover, belief functions nicely clarify the workings of burdens of persuasion and production. CONTENTS IN T R O D U C T IO N ................................................................................... 354 I. PROOF BY FACTFINDERS' BELIEFS .................................................... 360 A . B elief F un ctions ............................................................................ 362 Ziff Professor of Law, Cornell University. My sincere thanks to Zach Clopton and Mike Pardo for thoughtful and helpful reactions. Portions of this article are reprinted from Kevin M. Clermont, Death of Paradox: The Killer Logic Beneath the Standards of Proof, 88 NOTRE DAME L. REV. 1061 (2013), and from KEVIN M. CLERMONT, STANDARDS OF DECISION IN LAW: PSYCHOLOGICAL AND LOGICAL BASES FOR THE STANDARD OF PROOF, HERE AND ABROAD (2013).

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