The Error of Expected Loss Minimization

Abstract

Considerable effort has been expended by legal scholars attempting to apply formal approaches such as Bayes' Theorem or decision theory to various aspects of the litigation process. These efforts consistently fail adequately to account for the reality of the phenomenon being investigated. Most recently, Professor Kaye attempted to give another decision-theoretic account of the standard of persuasion in civil cases. This attempt fails formally, as it requires that litigation involve single issues for decision, which is virtually never the case. It fails pragmatically because it ignores all the surrounding context of the decision rule that colours and gives meaning to the decision rule. Jury trials cannot plausibly be analysed as designed to maximize the expected return to jurors.

Keywords: burden of persuasion, decision theory, expected utility, errors in litigation, equality, jury trials, algorithms, formalisms, formal reasoning