Group Agency and Legal Proof; or, Why the Jury Is an “It”

Jurors decide whether certain facts have been proven according to the applicable legal standards. What is the relationship between the jury, as a collective decision-making body, on one hand, and the views of individual jurors, on the other? Is the jury merely the sum total of the individual views of its members? Or do juries possess properties and characteristics of agency (for example, beliefs, knowledge, preferences, intentions, plans, and actions) that are in some sense distinct from those of its members? This Article explores these questions and defends a conception of the jury as a group agent with agency that may differ from that of its members. The Article then argues that this conception of the jury contains important implications for law and legal proof. These implications are both theoretical and practical. On the theoretical side, recent debates in evidence law have focused on whether legal proof is probabilistic or explanatory in nature. These debates, however, have largely assumed a single, unified fact-finder (whether jury or judge). The group-level perspective reveals new conceptual problems for the probabilistic theory that are alleviated by the explanatory theory; it thus provides further vindication for the explanatory account. On the practical side, the conception of the jury as a group agent, coupled with the explanatory account of proof, clarifies doctrinal issues on whether, and when, jurors must agree on factual details. In both criminal and civil cases, these issues have caused considerable confusion and uncertainty for courts and commentators

Pleadings, Proof, and Judgment: A Unifed Theory of Civil Litigation

The U.S. Supreme Court’s recent pleadings decisions—Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal—have injected considerable chaos into the system of civil litigation. The decisions impose an uncertain “plausibility” requirement and appear to endorse an increased power of district courts to dismiss complaints—a power that may be employed in an unprincipled, normatively problematic manner. The current pleading issues resemble similar issues that have arisen with summary judgment and judgment as a matter of law. This Article argues that there has been a significant failure at both the doctrinal and theoretical levels to relate these three procedural devices to the evidentiary proof process in particular and the system of civil litigation as a whole. It introduces a theory of “procedural accuracy” that explains, clarifies, and provides content to the standards for each device, explains how the theory fits, and explains important aspects of the doctrine for each device. Finally, and most importantly, I defend the theory and its standards as normatively desirable in light of procedural values that underlie the system of civil litigation as a whole

Morse, Mind, and Mental Causation

Stephen Morse’s illuminating scholarship on law and neuroscience relies on a “folk psychological” account of human behavior in order to defend the law’s foundations for ascribing legal responsibility. The heart of Morse’s account is the notion of “mental state causation,” in which mental states (e.g., beliefs, desires, and intentions) cause behavior. Morse argues that causation of this sort is necessary to support legal responsibility. We challenge this claim. First, we discuss problems with the conception of mental causation on which Morse appears to rely. Second, we present an alternative account to explain the link between mental states, reasons, and actions (the “rational–teleological” account). We argue that the alternative account avoids the conceptual problems that arise for Morse’s conception of mental causation and that it also undergirds ascriptions of legal responsibility. If the alternative succeeds, then Morse’s conception of “mental state causation” is not necessary to support legal responsibility

Risk, Uncertainty, and Super-Risk

Risk is a pervasive feature of law and public policy. Decision-making in these domains often takes place in the absence of certainty and with awareness that errors may be made and predictions may fail. Within law—as within the social and physical sciences, medicine, economics, finance, and countless other domains—a primary focus of practical and scholarly inquiries is the extent to which risks can be measured and managed. In each of these domains, risk analysis typically employs the basic tools of decision theory (probability and utility) to measure the likelihood as well as the costs and benefits associated with possible outcomes. Risk analysis also often makes use of the familiar (but confusing) distinction between decisions made in conditions of “risk” (roughly, the relevant likelihoods and costs are quantifiable) and decisions made in conditions of “uncertainty” (roughly, the possibilities are either unknown or not amenable to quantification). Beginning with the risk-uncertainty distinction, but altering its terminology, we argue that there is a fundamentally important type of risk that has been systematically ignored. We call it “super-risk.” Super-risk occurs when, at the time of decision, decision-makers believe they are in conditions of risk (what we call “actuarial decision-making”), but they do not know whether they are in an actuarial or an uncertain environment. Super-risk gives rise to a particular type of inferential problem, with significant practical consequences, when decision-makers proceed under the assumption that they are in an actuarial environment but they are in fact in an uncertain one. Super-risk has the potential to arise in any decision-making domain with uncertain outcomes, but it is more prone to arise with decision-making in domains such as law, public policy, economics, finance, and the social sciences rather than in domains such as the physical sciences, medicine, and insurance. Our goal in this Article is to introduce the general idea of super-risk and to explain its features and sources

Explanations and the Preponderance Standard: Still Kicking Rocks with Dr. Johnson

This paper responds to a previously unpublished article by the late evidence scholar and our friend Craig Callen Craig\u27s article and our response will be published in the Seton Hall Law Review in a symposium issue dedicated to the work of Michael Risinger We thank Michael for unearthing Craig\u27s manuscript ”which discusses our theory of juridical proof in terms of the relative plausibility of competing explanations ”and for inviting us to respond In this response we discuss developments in the literature since the manuscript was written and we explain how our theory accommodates the concerns Craig raises regarding sufficiency of the evidence Our discussion focuses as does Craig\u27s article on motions for summary judgment and judgment as a matter of law using employmentdiscrimination cases as illustrativ

Risk, Uncertainty, and Super-Risk

Risk is a pervasive feature of law and public policy. Decision-making in these domains often takes place in the absence of certainty and with awareness that errors may be made and predictions may fail. Within law—as within the social and physical sciences, medicine, economics, finance, and countless other domains—a primary focus of practical and scholarly inquiries is the extent to which risks can be measured and managed. In each of these domains, risk analysis typically employs the basic tools of decision theory (probability and utility) to measure the likelihood as well as the costs and benefits associated with possible outcomes. Risk analysis also often makes use of the familiar (but confusing) distinction between decisions made in conditions of “risk” (roughly, the relevant likelihoods and costs are quantifiable) and decisions made in conditions of “uncertainty” (roughly, the possibilities are either unknown or not amenable to quantification). Beginning with the risk-uncertainty distinction, but altering its terminology, we argue that there is a fundamentally important type of risk that has been systematically ignored. We call it “super-risk.” Super-risk occurs when, at the time of decision, decision-makers believe they are in conditions of risk (what we call “actuarial decision-making”), but they do not know whether they are in an actuarial or an uncertain environment. Super-risk gives rise to a particular type of inferential problem, with significant practical consequences, when decision-makers proceed under the assumption that they are in an actuarial environment but they are in fact in an uncertain one. Super-risk has the potential to arise in any decision-making domain with uncertain outcomes, but it is more prone to arise with decision-making in domains such as law, public policy, economics, finance, and the social sciences rather than in domains such as the physical sciences, medicine, and insurance. Our goal in this Article is to introduce the general idea of super-risk and to explain its features and sources

Bolivian Neocorynura (Hymenoptera: Halictidae): A new species and preliminary key to the fauna

This is the publisher's version, also available electronically from http://booksandjournals.brillonline.com/.A new species of the diverse and complicated augochlorine bee genus Neocorynura Schrottky (Augochlorini: Augochlorina) is described and figured. Neocorynura faceta sp. n. is described and figured from the Andes of Bolivia and is most similar to the more northern Andean species, N. papallactensis Engel from Ecuador and N. iguaquensis Smith-Pardo & Gonzalez from Colombia, but can be distinguished on the basis of integumental sculpturing and coloration. A preliminary key to the species of Neocorynura known to occur in Bolivia is provided