Explaining the Justificatory Asymmetry between Statistical and Individualized Evidence

In some cases, there appears to be an asymmetry in the evidential value of statistical and more individualized evidence. For example, while I may accept that Alex is guilty based on eyewitness testimony that is 80% likely to be accurate, it does not seem permissible to do so based on the fact that 80% of a group that Alex is a member of are guilty. In this paper I suggest that rather than reflecting a deep defect in statistical evidence, this asymmetry might arise from a general constraint on rational inquiry. Plausibly the degree of evidential support needed to justify taking a proposition to be true depends on the stakes of error. While relying on statistical evidence plausibly raises the stakes by introducing new kinds of risk to members of the reference class, paradigmatically `individualized' evidence---evidence tracing back to A's voluntary behavior---can lower the stakes. The net result explains the apparent evidential asymmetry without positing a deep difference in the brute justificatory power of different types of evidence

Probability, Presumptions and Evidentiary Burdens in Antitrust Analysis: Revitalizing the Rule of Reason for Exclusionary Conduct

The conservative critique of antitrust law has been highly influential and has facilitated a transformation of antitrust standards of conduct since the 1970s and led to increasingly more permissive standards of conduct. While these changes have taken many forms, all were influenced by the view that competition law was over-deterrent. Critics relied heavily on the assumption that the durability and costs of false positive errors far exceeded those of false negatives. Many of the assumptions that guided this retrenchment of antitrust rules were mistaken and advances in the law and in economic analysis have rendered them anachronistic, particularly with respect to exclusionary conduct. Continued reliance on what are now exaggerated fears of “false positives,” and failure adequately to consider the harm from “false negatives,” has led courts to impose excessive demands of proof on plaintiffs that belie both established procedural norms and sound economic analysis. The result is not better and more reasonable antitrust standards, but instead an embedded ideological preference for non-intervention that creates a tendency toward false negatives, particularly in modern markets characterized by economies of scale and network effects. In this article, we explain how these erroneous assumptions about markets, institutions, and conduct have distorted the antitrust decision-making process and produced an excessive risk of false negatives in exclusionary conduct cases involving firms attempting to achieve, maintain, or enhance dominance or substantial market power. To redress this imbalance, we integrate modern economic analysis and the teaching of decision theory with the foundational conventions of antitrust law, which has long relied on probability, presumptions, and reasonable inferences to provide more effective means for evaluating competitive effects and resolving antitrust claims

Evidentiary Problems in—And Solutions For—the Uniform Commercial Code

The Uniform Commercial Code does not offer a systematic approach to the rules governing the evidentiary relationships of parties to commercial litigation. In this article, Professors Allen and Hillman present a general analytical approach to proof rules, highlight the shortcomings of the Code\u27s evidentiary provisions, and discuss the inevitable confusion in the case law construing the Code. They propose an amendment to the Code designed to clarify and improve the Code approach

Legal Epistemology

An annotated bibliography of legal epistemology

An Enquiry Meet for the Case: Decision Theory, Presumptions, and Evidentiary Burdens in Formulating Antitrust Legal Standards

Presumptions have an important role in antitrust jurisprudence. This article suggests that a careful formulation of the relevant presumptions and associated evidentiary rebuttal burdens can provide the “enquiry meet for the case” across a large array of narrow categories of conduct confronted in antitrust to create a type of “meta” rule of reason. The article begins this project by using decision theory to analyze the types and properties of antitrust presumptions and evidentiary rebuttal burdens and the relationship between them. Depending on the category of conduct and market structure conditions, antitrust presumptions lie along a continuum from conclusive (irrebuttable) anticompetitive, to rebuttable anticompetitive, to competitively neutral, and on to rebuttable procompetitive and conclusive (irrebuttable) procompetitive presumptions. A key source of these presumptions is the likely competitive effects inferred from market conditions. Other sources are policy-based -- deterrence policy concerns and overarching policies involving the goals and premises of antitrust jurisprudence. Rebuttal evidence can either undermine the facts on which the presumptions are based or can provide other evidence to offset the competitive effects likely implied by the presumption. The evidentiary burden to rebut a presumption depends on the strength of the presumption and the availability and reliability of further case-specific evidence. These twin determinants can be combined and understood through the lens of Bayesian decision theory to explain how “the quality of proof required should vary with the circumstances.” The stronger the presumption and less reliable the case-specific evidence in signaling whether the conduct is anticompetitive versus procompetitive, the more difficult it will be for the disfavored party to satisfy the evidentiary burden to rebut the presumption. The evidentiary rebuttal burden generally is a burden of production, but also can involve the burden of persuasion, as with the original Philadelphia National Bank structural presumption, or typical procompetitive presumptions. If a presumption is rebutted with sufficient offsetting evidence to avoid an initial judgment, the presumption generally continues to carry some weakened weight in the post-rebuttal phase of the decision process. That is, a thumb remains on the scale. However, if the presumption is undermined, it is discredited and it carries no weight in the post-rebuttal decision process. The article uses this methodology to analyze various antitrust presumptions. It also analyzes the, burden-shifting rule of reason and suggests that the elements should not be rigidly sequenced in the decision process. The article also begins the project of reviewing, revising and refining existing antitrust presumptions with proposed revisions and refinements in a number of areas. The article invites other commentators to join the project by criticizing these proposals and suggesting others. These presumptions then could be applied by appellate courts and relied upon by lower court, litigants and business planners

Scientific Ignorance and Reliable Patterns of Evidence in Toxic Tort Causation: Is There a Need for Liability Reform?

As a first step to preserving the central aims of tort law, courts will need to recognize the wide variety of respectable, reliable patterns of evidence on which scientists themselves rely for drawing inferences about the toxicity of substances. Courts may also need to take further steps to address the woeful ignorance about the chemical universe. This may necessitate changes in the liability rules

Scientific Ignorance and Reliable Patterns of Evidence in Toxic Tort Causation: Is There a Need for Liability Reform?

As a first step to preserving the central aims of tort law, courts will need to recognize the wide variety of respectable, reliable patterns of evidence on which scientists themselves rely for drawing inferences about the toxicity of substances. Courts may also need to take further steps to address the woeful ignorance about the chemical universe. This may necessitate changes in the liability rules