CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Thursday, October 21, 2021

Schauer on Statistical Evidence and the Problem of Specification

Frederick Schauer (University of Virginia School of Law) has posted Statistical Evidence and the Problem of Specification (Episteme, vol. 19 (forthcoming 2022)) on SSRN. Here is the abstract:
Philosophical debates over statistical evidence have long been framed and dominated by L. Jonathan Cohen’s Paradox of the Gatecrasher and a related hypothetical example commonly called Prison Yard. These examples, however, raise an issue not discussed in the large and growing literature on statistical evidence -- the question of what statistical evidence is supposed to be evidence of. In actual practice, the legal system does not start with a defendant and then attempt to determine if that defendant has committed some unspecified or under-specified act, as these examples appear to suppose. Rather, both criminal and civil litigation start with a sufficiently specified act and then attempt to determine if the defendant has committed it. And when we start with a more fully specified act, the statistics look very different, and these prominent examples no longer present the paradox they are claimed to support. Examining the issue of specification, however, does more than simply undercut the prominent examples in a long and extensive literature. The examination also raises normative issues challenging the legal system’s traditional reluctance to base liability on the conjunction of probabilities.

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