This Article presents a theory whereby criminal punishments are routinely distributed in proportion to the weight of the evidence mounted against the defendant. According to this theory, the law ...relaxes the stringent decision threshold in criminal trials—beyond a reasonable doubt—by creating easy-to-prove evidentiary offenses. These offenses, in turn, are associated with less severe sanctions, thus creating a de-facto proportional liability regime. Against that backdrop, the Article examines the legal duty to report criminal activity to the authorities. As the analysis shows, while legal scholars analyzing such duties have focused on the paradigmatic case in which an innocent bystander, friend or family member is unwittingly exposed to information about a crime, in practice these duties are rarely used in such cases. Rather, reporting duties are used to prosecute suspected accomplices whose involvement in the commission of the actual crime is difficult to prove beyond a reasonable doubt. Thus, offenses imposing a reporting duty on criminal activity turn out to be part of the general framework of accomplice liability, and are used to apply less severe sanctions in cases of evidentiary uncertainty.
This paper is devoted to a special form of "proving" in civil proceedings. The prima facie evidence is about proving a causal connection with life experience and common knowledge. The term "prima ...facie evidence" appears repeatedly in Swiss literature and case law, but what is meant by it often remains unclear. This paper addresses the open questions about prima facie evidence in Swiss civil procedure: It examines (1) what is meant by it, (2) what exactly is proved by it, (3) how the court forms its conviction, (4) how prima facie evidence is to be classified in the structure of burden of proof, standard of proof, and evaluation of evidence, and (5) what are the consequences for civil procedure.
A Probabilistic Analysis of Title IX Reforms Isaacs, Yoaav; Iuliano, Jason
The journal of political philosophy,
March 2022, 2022-03-00, 20220301, Volume:
30, Issue:
1
Journal Article
Peer reviewed
In 2011, the policies governing US university investigations of sexual assault underwent dramatic changes. These reforms were due to a growing consensus that sexual misconduct is prevalent in ...American universities adn that previous university protocols were inadequate for handling such misconduct. In light of these developments, and subsequent guidance from the Office of Civil Rights regarding Title IX compliance, universities changed their policies on both the standards of proof for their investigations and the evidentiary procedures employed in them. The consensus view is that the 2011 changes to both the standard of proof and the evidentiary procedures are of a type-they each necessarily favor the prosecution over the defense, the accuser over the accused. We have grave reservations about this analysis. The reason the change to evidentiary procedures can benefit the defense is because they reduce the amount of evidence that is made available during the campus investigation. The rational response to limited information has two effects: (1) it harms defendants who, if not for the reforms, could have presented a strong defense and (2) it helps defendants who, if not for the reforms, would have had the weakness of their defense exposed. This outcome is the exact opposite of what any just adjudicatory system would strive to achieve and is clearly not the result intended by the Office of Civil Rights. In 2017 the Department of Education issued new guidance that has the potential to exacerbate these hidden dangers of the original reforms. Specifically, rather than nullify the 2011 reforms, the 2017 guidance simply mandates uniformity in university investigations. Under the 2017 reforms, universities are allowed to adopt both a heightened standard of proof and reduced evidentiary protections, a combination that we will show can make it dramatically harder for truth-telling accusers to be believed.
The paper aims to analyze the evidentiary legal structure of the extended confiscation in the Brazilian criminal procedure, focusing on the claim that extended confiscation reverses the burden of ...proof by removing it from the prosecution and transferring it to the accused. The paper will show that extended confiscation is based on a relative legal presumption of illicit origin of the incompatible assets of those convicted of serious crimes. The use of presumption, as will be shown, does not mean reversing the burden of proof, as it requires prosecutors to produce strong and sufficient evidence to prove the facts that support the legal presumption.
Can the evidence provided by software systems meet the standard of proof for civil or criminal cases, and is it individualized evidence? Or, to the contrary, do software systems exclusively provide ...bare statistical evidence? In this paper, we argue that there are cases in which evidence in the form of probabilities computed by software systems is not bare statistical evidence, and is thus able to meet the standard of proof. First, based on the case of State v. Loomis, we investigate recidivism predictions provided by software systems used in the courtroom. Here, we raise problems for software systems that provide predictions that are based on bare statistical evidence. Second, by examining the case of People v. Chubbs, we argue that the statistical evidence provided by software systems in cold hit DNA cases may in some cases suffice for individualized evidence, on a view on which individualized evidence is evidence that normically supports the relevant proposition (Smith, in Mind 127:1193–1218, 2018).
Optimal standards of proof in antitrust Mungan, Murat C.; Wright, Joshua
International review of law and economics,
September 2022, 2022-09-00, Volume:
71
Journal Article
Peer reviewed
Open access
Economic analyses of antitrust institutions have thus far focused predominantly on optimal penalties and the design of substantive legal rules, and have largely ignored the standard of proof used in ...trials as a policy tool in shaping behavior. This neglected tool can play a unique role in the antitrust context, where a given firm may have the choice to engage in exceptional anticompetitive or procompetitive behavior, or simply follow more conventional business practices. The standard of proof used in determining the legality of a firm’s conduct affects not only whether the firm chooses to engage in pro- versus anticompetitive behavior, but also whether it chooses to remain passive. We introduce a model to investigate the effects of this additional tradeoff on the optimal standard of proof. The nature of these effects depends upon the relationship between the beneficial impact of procompetitive behavior versus the harmful impacts of anticompetitive behavior, since this relationship is what determines the costs associated with Type I and Type II error. Adopting Judge Easterbrook’s presumption that preventing procompetitive behavior is more harmful than allowing anticompetitive behavior, we show that the standard of proof facing plaintiffs in antitrust cases ought to be stronger than preponderance of the evidence.
•Firms follow conventional business practices (inaction) or, engage in innovative procompetitive acts or anticompetitive acts.•Demanding less evidence from plaintiffs incentivizes inaction.•The optimal standard of proof is pro-defendant when Easterbrook’s assumption holds.•The plaintiff bears the burden of proof and must satisfy a standard that is stronger than preponderance of the evidence.•Easterbrook’s assumption refers to procompetitive acts being more valuable than stopping anticompetitive acts.
Now that the judgments in
Servizio Elettrico Nazionale
and
Unilever
have made sense of previous case-law, a unified analytical framework can be predicated for all exclusionary abuses. It is made up ...of two limbs (artificiality/conduct deviating from competition on the merits and potential exclusionary effect/capability of foreclosing). The two limbs are two sides of the same coin, which consists of ascertaining whether the plausible rationale (in the sense of nature and economy) behind a dominant company’s conduct is to derive an advantage that equally efficient competitors cannot either derive by doing the same (first limb–artificiality) or offset by other means (second limb–potential effect). This exclusionary rationale, which is a cognitive state in the dominant company’s mind rather than an ontological reality, is objectivised by holistically judging the dominant company’s conduct against the backdrop of the relative efficiency of its competitors, which is the link between both limbs: if the inherent features of the company’s conduct and all the relevant circumstances surrounding it allow equally efficient competitors to either derive a similar advantage or to defeat its exclusionary effect by some other means, the conduct does not make anticompetitive sense (exclusion is not its plausible rationale). Owing to the very Darwinian nature of competition law, relative efficiency is the common “quantum” and, therefore, a useful yardstick for abuse from the historical, legal, teleological and practical perspectives, as well as from the points of view of causality and reality. Finally, plausibility would be the single standard of proof that could be rebutted by disproving either of the two limbs (in an
Intel II
-like fashion), either by providing an alternative non-exclusionary explanation that breaks the casual link or by putting forward an objective justification. All other tests and standards merely reflect the extent to which either the artificiality or the potential effects of the conduct can be presumed based on economic judgement or experience (as happened in merger control following
CK Telecoms
)–thus reconciling per se rules, consisting of an Art. 101-like cursory analysis, with a more economic approach.
The aim of the paper is, firstly, to try to understand the reasons for the different approaches to medical malpractice in two legal systems taken as models: the U.S., where professional negligence is ...almost exclusively subject of tort law; Italy, where criminal law instruments are instead widely used. The different extent of criminal responsibility for negligence and omission seems connectable to different political and cultural models: individualistic liberalism, on the one hand, solidarist statism and communitarianism, on the other hand; in juridical terms, to the ideal contrast between the reactive State and the active State; to the different approach to the relationship between subject and body, dominical-individual versus collectivist-social; with a tendential "privatization" of the health-good, in the US model, and a "socialization" of the good-health itself, in the Italian model. Secondly, the paper tries, in a comparative perspective, to evaluate these different approaches, in terms of access to justice, paths and outcomes of the two models. The article attempts to highlight the strengths and the weaknesses of the contingent-fee system in the U.S. tort arena, and of the criminal justice system as "free legal aid" in Italy: a balanced solution should also allow victims hindered by the costs and the length of civil actions the possibility of using these latter form of protection, avoiding that criminal justice is exploited for compensatory purposes. Indeed, tort law more easily can meet compensatory claims, due to the lower probative standard required, the preponderance of evidence, rather than the beyond any reasonable doubt standard, required in criminal law. Also in terms of outcomes, the main problems arising in the two systems need to be tackled: the problem of few persons compensated, allowing a greater number of injured parties to access to justice and obtain fair compensation; the problem of symbolic criminal convictions (observed in the Italian experience), avoiding the automatic use of suspended penalties and monetary penalties as substitute of penalties weighing on professional practice and freedom, since these automatic mechanisms limit the preventive effectiveness of the criminal sanction and run the risk of creating discrimination on a census basis.
This article aims to describe the application of the standard of proof in arbitration and to question whether the standard to be applied should be the same as or lower than in ordinary civil justice ...as a result of the contractual origin of the dispute. The determination of the applicable standard takes into consideration the equality of arms and other guarantees of due process, along with the fact of the absence of the standard rule in the Arbitration Act 1996. The arbitrator shall establish these aspects at the beginning of the process, considering also the rules of burden of proof.
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