Wednesday, February 1, 2012
Kevin Clermont (Cornell Law School) has posted Death of a Paradox: Perpetrated By Understanding the Standards of Proof to SSRN.
Modern versions of logic — in particular, fuzzy logic and belief functions — help to explain how the standard of proof actually works in the law world. They suggest that factfinders view evidence of an imprecisely perceived and described reality to form a degree of belief in a fact’s existence, and that they apply the standard of proof by comparing that belief to their belief in its negation.
For understanding the standards of proof, these degrees of fuzzy belief work better than classical probability. They give a superior mental image of the factfinders’ task, conform more closely to what we know of people’s cognition, and capture better what the law says its standards are and how it manipulates them. One virtue of this reconceptualization is that it is not a radically different conception. Another virtue is that it nevertheless manages to resolve some stubborn problems of proof, including the infamous conjunction paradox.