The Error of Equal Error Rates

Abstract

The more-probable-than-not burden of persuasion applicable to most civil cases sometimes is said to implement the policy objective of equalizing the rates of (1) erroneous verdicts for plaintiffs and (2) erroneous verdicts for defendants. This paper shows that this claim is unfounded and untenable. It concludes that the more-probable-than-not standard reflects a different, and more appropriate conception of equality - one that considers the expected losses associated with errors rather than the frequencies of errors.