Second-Order Proof Rules

Abstract

Proof rules in law dictate when facts have been proven. They do so by specifying a level of proof such as by a preponderance of the evidence, by clear and convincing evidence, or beyond a reasonable doubt. The rules function to serve two goals: accuracy (minimizing errors) and fairly allocating the risk of error. I argue that these rules fail to serve their goals, and I propose and argue for second-order proof rules that will better align decision-making with these goals. The second-order rules have the potential to improve not only factual decision-making at trial but also decisions implementing procedural rules that depend on judgments about the sufficiency of the evidence. These include summary judgment and judgment as a matter of law in civil cases and sufficiency challenges by criminal defendants.

Keywords: preponderance of the evidence, clear and convincing evidence, beyond a reasonable doubt, rules, standards, error allocation, error distribution, probability, abduction, inference to the best explanation, sufficiency of the evidence, summary judgment, judgment as a matter of law, Jackson v. Virginia