The silliness of magical realism Clermont, Kevin M
The international journal of evidence & proof,
04/2019, Volume:
23, Issue:
1-2
Journal Article
Peer reviewed
Open access
Relative plausibility, even after countless explanatory articles, remains an underdeveloped model bereft of underlying theory. Multivalent logic, a fully developed and accepted system of logic, comes ...to the same endpoint as relative plausibility. Multivalent logic would thus provide the missing theory, while it would resolve all the old problems of using traditional probability theory to explain the standards of proof as well as the new problems raised by the relative plausibility model. For example, multivalent logic resolves the infamous ‘conjunction paradox’ that traditional probability creates for itself, and which relative plausibility tries to sweep under the rug.
Yet Professors Allen and Pardo dismiss multivalent logic as magical realism when applied to legal factfinding. They reject this ring buoy because they misunderstand nonclassical logic, as this response explains.
The paper provides a conceptual distinction between evidence assessment criteria and standards of proof. Evidence must be assessed in order to check whether it satisfies a relevant standard of proof, ...and the assessment is operated with some criterion; so both criteria and standards are necessary for fact-finding. In addition to this conceptual point, the article addresses three main questions: (1) Why do some scholars and decision-makers take assessment criteria as standards of proof and vice versa? (2) Why do systems differ as to criteria and standards? (3) How can a system work if it neglects one of these things? The answers to the first and second question come from the historical and procedural differences between the systems. The answer to the third focuses on the
functional connection
between criteria and standards.
We present a computational argumentation approach that models legal reasoning with evidence and proof as dialectical rather than probabilistic. This hybrid approach of stories and arguments models ...the process of proof in a way that is compatible with Allen and Pardo's theory of relative plausibility by adding arguments that can be used to show how evidence can support or attack explanations. Using some legal cases as examples, we show how criteria for assessing explanations connect arguments and evidence to story schemes. We show how this hybrid dialectical approach avoids the main problem of the probabilistic approaches, namely that they require precise numbers to be applied in order to decide legal cases. We provide an alternative method that allows fact-finders to reason with evidence holistically and not in the item-by-item fashion proposed by the probabilistic account.
Ewen Speed and Russell Mannion correctly identify several contours of the challenges for health policy in what it is useful to think of as a post-democratic era. I argue that the problem for public ...health is not populism per se, but rather the distinctive populism of the right coupled with the failure of the left to develop compelling counternarratives. Further, defences of 'science' must be tempered by recognition of the unavoidably political dimensions of the (mis)use of scientific findings in public policy.
Quantifying the presumption of innocence Scurich, Nicholas; Nguyen, Kenneth D.; John, Richard S.
Law, probability and risk,
03/2016, Volume:
15, Issue:
1
Journal Article
Peer reviewed
The presumption of innocence is sacrosanct in Anglo-legal doctrine, yet how jurors interpret it remains unknown. This experiment manipulated the alleged crime (violent, child, or sexual assault) and ...the defendant's physical appearance (good, mediocre, or bad). Following Savage (1954), uncertainty about the guilt of the defendant was conceptualized in terms of prospective jurors' willingness to gamble about whether the defendant is guilty. For each case, participants were asked to choose between a standard lottery, with specified probability of winning $100 versus nothing, and a trial gamble involving the unspecified probability of guilt (win $100) and innocence (win nothing) for the case presented. Participants indicated a preference to either play the standard lottery or the trial gamble, or indifference between the two options. Once a participant indicated indifference, the probability of guilt was set equal to the probability of winning the standard lottery. Across all 3 types of crimes and all 3 categories of appearance, median participants' prior odds of guilt were close to 0.50, indicating that prospective jurors generally believed the defendants were just as likely to be guilty as innocent prior to the introduction of any evidence. A main effect for appearance was detected. 'Bad' and 'mediocre' defendants were perceived to be more likely to be guilty than 'good' defendants. There were no differences between the various alleged crimes. Overall, male participants and self-identified Republicans were the most likely to have high (>0.65) prior probabilities of guilt. Implications for legal doctrine are discussed.
Beyond reasonable doubt represents a probability value that acts as the criterion for conviction in criminal trials. I introduce the membership function (MF) method as a new tool for measuring ...quantitative interpretations of reasonable doubt. Experiment 1 demonstrated that three different methods (i.e., direct rating, decision theory based, and MF) provided significantly different and uncorrelated interpretations of reasonable doubt, although all methods predicted verdicts equally well, and showed inter-individual variability in interpretations. In Experiment 2 only the direct rating method demonstrated a significant effect of judicial instructions on reasonable doubt. In both experiments, the MF method showed intra-individual variability in interpretations of reasonable doubt. The methods may be capturing different aspects of the concept of reasonable doubt. These findings have implications for the validity of past research findings on reasonable doubt and for the utility of triangulation of methods in future research.
According to EU competition law, the existence of an anticompetitive agreement can be inferred from a number of coincidences and indicia only in the absence of another plausible explanation of the ...facts at stake. According to U.S. federal law (antitrust law included), only a complaint that states a plausible claim for relief can survive a motion to dismiss at the pleading stage. What is plausible, however? After explaining the relationship between facts and evidence law, this chapter analyses the general meaning of the notion of plausibility, discusses the degree of discretion that it introduces, how it affects the justifications that judges and fact-finders make for their choices, and remarks on how this concept relates to substantial accuracy. On the other hand, the chapter acknowledges that antitrust law, by relating our understanding of what is plausible to economic models, debunks these concerns and raises another striking issue. Since economics is rooted in various axioms and value-choices, the link that antitrust law establishes among plausibility, standards of proof and economics grants to these axioms and value-choices the possibility of affecting the antitrust decisions about facts, although these decisions (as all factual decisions) should amount to pure descriptions of the concrete facts disputed at trial or during the administrative procedure.
How does one prove the law? If your neighbor breaks your window, the law regulates how you can show your claim to be true or false; but how do you prove that in breaking your window your neighbor has ...broken the law? American jurisprudence devotes an elaborate body of doctrine—and an equally elaborate body of accompanying scholarly commentary—to worrying about how to prove facts. It establishes rules for the admissibility of evidence, creates varying standards of proof, and assigns burdens of proof that determine who wins or loses when the facts are unclear. But the law is shockingly inexplicit when addressing these issues with respect to the proof of legal claims. Indeed, the entire language of evidentiary proof, so sophisticated when it comes to questions of fact, is largely absent from the American legal system with respect to questions of law.As Gary Lawson shows, legal claims are inherently objects of proof, and whether or not the law acknowledges the point openly, proof of legal claims is just a special case of the more general norms governing proof of any claim. As a result, similar principles of evidentiary admissibility, standards of proof, and burdens of proof operate, and must operate, in the background of claims about the law. This book brings these evidentiary principles for proving law out of the shadows so that they can be analyzed, clarified, and discussed. Viewing legal problems through this lens of proof illuminates debates about everything from constitutional interpretation to the role of stipulations in litigation. Rather than prescribe resolutions to any of those debates, Evidence of the Law instead provides a set of tools that can be used to make those debates more fruitful, whatever one's substantive views may be. As lawyers, judges, and legal subjects confront uncertainty about what the law is, they can, should, and must, Lawson argues, be guided by the same kinds of abstract considerations, structures, and doctrines long used to make determinations about questions of fact.
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