Document Type

Working Paper

Publication Date

4-18-2009

SSRN Discipline

Legal Scholarship Network; Criminal Law & Procedure eJournals; Law School Research Papers - Legal Studies; Litigation, Procedure & Dispute Resolution eJournals; Law & Society eJournals; LSN Subject Matter eJournals; Law School Research Papers - Public Law & Legal Theory; Constitutional Law, Jurisprudence & Legal Philosophy eJournals

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 secondorder proof rules that will better align decisionmaking with these goals The secondorder rules have the potential to improve not only factual decisionmaking 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

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