Academic journal article The Review of Litigation

Bad Romance: The Uncertain Promise of Modeling Legal Standards of Proof with the Inference to the Best Explanation

Academic journal article The Review of Litigation

Bad Romance: The Uncertain Promise of Modeling Legal Standards of Proof with the Inference to the Best Explanation

Article excerpt

I. INTRODUCTION ........................................................ 72

II. INFERENCE TO THE BEST EXPLANATION: A BRIEF SUMMARY ............................................................... 73

III. PROBLEMS WITH LEGAL STANDARDS OF PROOF AND POTENTIAL IBE REMEDIES ......................................................... 76

A. Problems Identified ........................................................... 76

B. Proposed Remedies for the Identified Problems ............... 78

1. Modeling POE .................................................. 79

2. Modeling BARD ............................................... 79

a. No Sufficiently Plausible A Iternative ................. 79

b. High Degree of Virtue ................................. 81

C. Are These Proposals Solutions? ........................................ 81

IV. PROBLEMS WITH THE PROPOSED SOLUTIONS ...................... 82

A. Problems with the IBE Model of POE .............................. 82

B. Problems with the IBE Model of BARD ............................ 83

1. High Degree of Virtue ......................................... 84

2 . No Sufficiently Plausible Alternative ...................... 84

V. RESPONSES TO THE IDENTIFIED ISSUES ............................. 85

A. Utilizing IBE in the POE Context ..................................... 85

B. Utilizing IBE in the BARD Context ................................... 86

1. High Degree of Virtue ......................................... 86

2. No Sufficiently Plausible Alternative ..................... 89

VI. LINGERING ISSUES AND THOUGHTS ON SOLUTIONS ............... 90

A. Lingering Issues with BARD ............................................. 90

B. Lingering Issues with POE ................................................ 94

VII. CONCLUSION ........................................................... 96

I. INTRODUCTION

Abductive reasoning, commonly described as "inference to the best explanation," has long found favor among many philosophers as a method of choosing between competing candidate explanations.1 Inference to the best explanation (IBE) dictates that when confronted with a set of different explanations for a given phenomenon, we should examine the explanatory virtues of each of the respective explanations - such as, consilience, simplicity, coherence, lack of ad hocery, testability, and internal consistency2 - and defeasibly accept as true the candidate explanation that does the best job of explaining the phenomenon.3 Such an inference pattern is believed to be common in the reasoning conducted during daily life, but is at the same time equivalent to the deductive logical fallacy of "affirming the consequent."4

Recently, legal scholars have attempted to integrate the epistemic tool of IBE into legal philosophy. Specifically, scholars have tried to utilize IBE in the explication of highly nebulous legal standards of proof. The motivation for such attempts can be traced to the fact that legal standards of proof - both criminal and civil - often prove difficult to consistently and reliably apply.5 Among a bevy of esteemed scholars, Ron Allen and Michael Pardo,6 John Josephson, and Paul Thagard have all offered accounts of how IBE might be utilized to elucidate legal standards of proof. And it should come as no surprise that along with those optimistic about the utility of IBE in the context of legal standards of proof, there are those, like Larry Laudan, who would discount the role of IBE in explicating legal standards of proof.9

We will evaluate the arguments against IBE' s role in modeling legal standards of proof. We will examine the assertions most often offered in support of this perspective, and provide responses to those assertions that indicate that such arguments are not highly persuasive. We do not aim to provide an unqualified defense of the utility of IBE in modeling legal standards of proof. …

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