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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