October 15, 2012
Clermont on Burdens of Proof and Multiple Claims
Kevin M. Clermont (Cornell University - School of Law) has posted Aggregation of Claims and Illogic on SSRN. Here is the abstract:
and probability theory produce in law the troublesome paradox of aggregation: On
the one hand, logic seems to tell us that the aggregated likelihood of
alternative claims elevates in response to probability’s rules; thus, if the
plaintiff almost proves claim A and almost proves an alternative but independent
claim B, then the plaintiff should win one. On the other hand, because the law
requires each claim to meet the standard of proof, and thus refuses to apply the
proof standard to the aggregation, the plaintiff loses in actuality; legal
scholars despair in consequence — including Ariel Porat and Eric Posner in their
new article Aggregation and Law.
Fuzzy logic, however, eradicates the aggregation paradox, by showing that the theories’ aggregated likelihood equals the most likely theory’s likelihood. The law is correct in applying this approach.
October 15, 2012 | Permalink