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13 Cardozo L. Rev. 935 (1991 - 1992)
The Morality of Statistical Proof and the Risk of Mistaken Liability

handle is hein.journals/cdozo13 and id is 957 raw text is: THE MORALITY OF STATISTICAL PROOF AND
David T Wasserman*
My thesis in this paper is that the moral acceptability of proof by
statistical evidence does not depend on the adequacy of subjective
probability theory as a model of legal proof. I will argue that we ob-
ject to a reliance on statistical evidence only when it adds insult to the
injury of a false finding of liability. The degree of insult depends on
the issue in dispute, the source of the statistical evidence, and the as-
sumptions made in employing that evidence. When, as in toxic tort
cases, a particular use of statistical evidence does not demean the de-
fendant or expose him to a wide-ranging risk of false liability, we may
be willing to rely on that evidence to resolve disputed issues of fact.
The debate over statistical evidence has largely focused on the
epistemology of legal proof, not on the moral issues involved in
resolving factual uncertainty.' The debate has centered on the Baye-
* Research Scholar, Institute for Philosophy and Public Policy, University of Maryland.
J.D., University of Michigan. I would like to thank Richard Lempert and Alan Strudler for
helpful comments on arlier drafts of this paper.
I See L.J. COHEN, THE PROBABLE AND THE PROVABLE (1977); Cohen, The Role of Evi-
dential Weight in Criminal Proof in PROBABILITY AND INFERENCE IN THE LAW OF Evi-
DENCE: THE USES AND LIMITS OF BAYESIANISM 113 (P. Tillers & E. Green eds. 1988)
[hereinafter PROBABIL ITY AND INFERENCE]; Edwards, Summing Up: The Society of Bayesian
Trial Lawyers, in PROBABILITY AND INFERENCE, Id. at 337; Kaye, Do We Need Calculus of
Weight to Understand Proof Beyond a Reasonable Doubt?, in PROBABILITY AND INFERENCE,
Id. at 129; Callen, Notes on a Grand Illusion: Some Limits on the Use of Bayesian Theory in
Evidence Law, 57 IND. L.J. 1 (1982); Cohen, Discussion: On Analyzing the Standards of Foren-
sic Evidence: A Reply to Schoeman, 54 PHIL. OF SCI. 92 (1987) [hereinafter Cohen, Reply to
Shoeman]; Cohen, Suijective Probability and the Paradox of the Gatecrasher, 1981 ARIZ. ST.
L.J. 627 [hereinafter Cohen, Subjective Probability]; Kaye, The Laws of Probability and the
Law of the Land, 47 U. CHI. L. REV. 34 (1981) [hereinafter Kaye, The Laws of Probability];
Kaye, The Paradox of the Gatecrasher and Other Stories, 1979 ARIZ. ST. L.J. 101 [hereinafter
Kaye, The Paradox of the Gatecrasher]; Kaye, Paradoxes, Gedanken Experiments and The
Burden of Proof- A Response to Dr. Cohen's Reply, 1979 ARIZ. ST. L.J. 635; Koehler &
Shaviro, Verdical Ver,!icts: Increasing Verdict Accuracy Through the Use of Overtly Probabilis-
tic Evidence and Metods, 75 CORNELL L. REV. 247 (1990); Schum, A Review of a Case
Against Blaise Pascal and His Heirs, 77 MICH. L. REV. 446 (1979); Schoeman, Cohen On
Inductive Probability a'nd the Law of Evidence, 54 PHIL. OF Scl. 76 (1987); Tyree, Proof and
Probability in the Anglo-American Legal System, 23 JURIMETRICS J. 89 (1982). Several au-
thors have given prominence to ethical issues in statistical proof. See, e.g., Shaviro, Statistical-
Probability Evidence and the Appearance of Justice, 103 HARV. L. REV. 530 (1989) [hereinafter
Shaviro, Statistical-Prubability Evidence]; Schoeman, Statistical vs. Direct Evidence, 21 NOUS
179 (1987); Tribe, Trial By Mathematics: Precision and Ritual in the Legal Process, 84 HARV.

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