Probabilities in Probable Cause and Beyond: Statistical Versus Concrete Harms The Death of Probable Cause 73 Law and Contemporary Problems 2010

73 Law & Contemp. Probs. 69 (2010)
Probabilities in Probable Cause and Beyond: Statistical Versus Concrete Harms

handle is hein.journals/lcp73 and id is 769 raw text is: PROBABILITIES IN PROBABLE CAUSE
AND BEYOND: STATISTICAL VERSUS
CONCRETE HARMS
SHERRY F. COLB*
I
INTRODUCTION
Human beings often have difficulty applying abstract statistical information
to concrete circumstances. In particular, we are more comfortable acting in a
potentially harmful way when the anticipated harm is abstract and statistical
rather than concrete and specific. For illustration, contrast the willingness of
many repeatedly to risk causing death or serious injury by driving while talking
on the telephone,' with our apparent unwillingness knowingly to drive over a
pedestrian's foot to get to the hospital faster, even if the net potential gain is
greater (and the cumulative harm lesser, over time) in the latter case than in the
former.
Like most standards of proof, probable cause necessarily contemplates
that official action may be undertaken in situations under which there is some
probability that the action will prove to have been correct (it will accomplish
the objective for which it was initiated), and some probability that the action
will prove to have been incorrect (it will cause harm that, ex post, was not
justified). The inevitable consequence of such standards of proof is that, over
time, some number of people (better estimated as the total grows) will suffer an
undeserved harm.
For example, if there must be a ninety-nine percent probability of guilt
before it is permissible to convict a person of a crime, then when 10,000 people
are convicted on this standard, we know that approximately one hundred of
them are innocent. A ninety-nine percent standard of proof may nonetheless
Copyright © 2010 by Sherry Colb.
This article is also available at http://www.law.duke.edu/journals/lcp.
* Professor of Law and Charles Evans Hughes Scholar, Cornell University Law School. I wish here
to thank Michael C. Dorf, Joel Atlas, Kevin Claremont, Ted Eisenberg, Michael Heise, Robert
Hockett, Jens Ohlin, Eduardo Pefialver, Jeff Rachlinski, Emily Sherwin, Steve Shiffrin, and Brad
Wendell, for extremely helpful comments and suggestions on earlier drafts of this piece, along with all
members in attendance at the Cornell Legal Theory Summer Workshop, who read my draft and gave
me helpful feedback on it. I also want to thank Roald Nashi for outstanding research assistance.
1. NAT'L HIGHWAY TRAFFIC SAFETY ADMIN., TRAFFIC SAFETY FACTS RESEARCH NOTE:
DRIVER ELECTRONIC DEVICE USE IN 2008 1 (2009), available at http://www-
nrd.nhtsa.dot.gov/Pubs/811184.PDF (showing that 812,000 vehicles are driven by someone using a
hand-held cell phone at any given daylight moment).

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