Against the Alleged Insufficiency of Statistical Evidence

40 Pages Posted: 23 Aug 2019

See all articles by Sam Fox Krauss

Sam Fox Krauss

affiliation not provided to SSRN

Date Written: August 20, 2019

Abstract

Over almost a half-century, evidence law scholars and philosophers have contended with what have come to be called the “Proof Paradoxes.” In brief, the following sort of paradox arises: Factfinders in criminal and civil trials are charged with reaching a verdict if the evidence presented meets a particular standard of proof—beyond a reasonable doubt, in criminal cases, and preponderance of the evidence, in civil trials. It seems that purely statistical evidence can suffice for just such a level of certainty in a variety of cases where our intuition is that it would nonetheless be wrong to convict the defendant, or find in favor of the plaintiff, on merely statistical evidence. So, we either have to convict with statistical evidence, in spite of an intuition that this is unsettling, or else explain what (dispositive) deficiency statistical evidence has.

Most scholars have tried to justify the resistance to relying on merely statistical evidence: by relying on epistemic deficiencies in this kind of evidence; by relying on court practice; and also by reference to the psychological literature. In fact, I argue, the epistemic deficiencies philosophers and legal scholars allege are suspect. And, I argue, while scholars often discuss unfairness to civil defendants, they ignore a long history of relying on statistical evidence in a variety of civil matters, including employment discrimination, toxic torts, and market share liability cases. Were the dominant arguments in the literature to prevail, it would extremely difficult for plaintiffs to recover in a variety of cases.

The various considerations I advance lead to the conclusion that when it comes to naked statistical evidence, philosophers and legal scholars who argue for its insufficiency have been caught with their pants down.

Keywords: statistical evidence

JEL Classification: k10

Suggested Citation

Krauss, Sam Fox, Against the Alleged Insufficiency of Statistical Evidence (August 20, 2019). Florida State University Law Review, Vol. 47, 2020, Available at SSRN: https://ssrn.com/abstract=3440138

Sam Fox Krauss (Contact Author)

affiliation not provided to SSRN

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