The Legal Analyst: A Toolkit for Thinking about the Law

By Ward Farnsworth | Go to book overview

28 Standards of Proof

It’s rare for people making decisions to be perfectly sure they are right, and this is as true in a courthouse as elsewhere. But how much confidence should we require in a decision? We find a lively set of studies in the problem in decisions courts make of the what if variety. A sailor falls over the side of a ship and is dragged to his death by a squid some moments later. He might have been saved if he had been thrown a rope, but the captain had mistakenly left all the rescue gear behind on shore. In a lawsuit resulting from this sort of case, it isn’t enough for the sailor’s kin to say it was blameworthy in the captain to have gone to sea ill-equipped (let’s assume that it was). It also has to be shown that the rope would have made a difference—that it would have saved the sailor. Maybe it wouldn’t have; maybe the squid was too quick. The normal thing would be to put together a jury and ask them to decide the question. But now suppose the jurors aren’t entirely sure. They think a rope could well have saved him, but perhaps not. How sure must they be before they find against the captain?

It might seem a natural solution to have the jury assign a figure to its best guess and then have the captain pay over to the plaintiffs a share of money that corresponds to it. So suppose the sailor’s death deprived his kin of $100,000 in earnings they otherwise had coming; if the jury thinks there is a 30 percent chance that a rope would have saved him, the captain would be obliged to pay the kin 30 percent of the earnings: $30,000. If the rope was 80 percent likely to have made a difference, then $80,000 would be due from the captain. The award would increase with our certainty of its justice.

Yet usually we do nothing of the kind. We tell the jury instead to answer a yes-or-no question: whether the plaintiff has shown by a preponderance of the evidence that a rope would have saved the sailor. Most courts regard this as equivalent to asking if the chance the rope mattered was better than 50 percent. If it wasn’t—if the jury’s best guess is that the rope was, say, 30 percent likely to have mattered—the plaintiff hasn’t met the standard of proof and the captain pays nothing. But if there’s a 60 percent chance that the sailor would have been rescued, the captain

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The Legal Analyst: A Toolkit for Thinking about the Law
Table of contents

Table of contents

  • Title Page iii
  • Contents v
  • Preface vii
  • Acknowledgments xi
  • Part I - Incentives 1
  • 1 - Ex Ante and Ex Post 3
  • 2 - The Idea of Efficiency 13
  • 3 - Thinking at the Margin 24
  • 4 - The Single Owner 37
  • 5 - The Least Cost Avoider 47
  • 6 - Administrative Cost 57
  • 7 - Rents 66
  • 8 - The Coase Theorem 75
  • Part II - Trust, Cooperation, and Other Problems for Multiple Players 85
  • 9 - Agency with Eric Posner 87
  • 10 - The Prisoner's Dilemma 100
  • 11 - Public Goods 109
  • 12 - The Stag Hunt 117
  • 13 - Chicken 126
  • 14 - Cascades 136
  • 15 - Voting Paradoxes 144
  • 16 - Suppressed Markets with Saul Levmore 152
  • Part III - Jurisprudence 161
  • 17 - Rules and Standards 163
  • 18 - Slippery Slopes with Eugene Volokh 172
  • 19 - Acoustic Separation 182
  • 20 - Property Rules and Liability Rules 188
  • 21 - Baselines 198
  • Part IV - Psychology 207
  • 22 - Willingness to Pay and Willingness to Accept- The Endowment Effect and Kindred Ideas 209
  • 23 - Hindsight Bias 218
  • 24 - Framing Effects 224
  • 25 - Anchoring 230
  • 26 - Self-Serving Bias, with a Note on Attribution Error 237
  • Part V - Problems of Proof 247
  • 27 - Acoustic Separation 249
  • 28 - Standards of Proof 257
  • 29 - The Product Rule 273
  • 30 - The Base Rate 281
  • 31 - Value and Markets 294
  • Notes 305
  • Author Index 329
  • Subject Index 335
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