Tuesday, October 10, 2017
Ronald J. Allen (Northwestern University Law School) has posted The Declining Utility of Analyzing Burdens of Persuasion on SSRN. Here is the abstract:
This brief paper presented at a celebration of the career of Michael Risinger, briefly reviews why the relative plausibility theory is to date the best explanation of juridical proof and the limits of its chief competitor, a probabilistic explanation. It is true that the legal system is structured to generate the most probable outcome as the verdict in cases; nonetheless, the conclusion of the most plausible (and thus most probable) outcome is achieved through plausible reasoning, not probabilistic reasoning, and virtually the entire procedural context supports, indeed forces the parties to pursue, this approach. A recent competitor to relative plausibility has been advanced in the form of fuzzy set theory that purportedly dissolves the “conjunction paradox,” which is taken as evidence of the inadequacies of the relative plausibility theory. This paper demonstrates that the purported intimate connection between the conjunction paradox and relative plausibility does not exist.