Document Type

Working Paper

Publication Date

7-29-2007

SSRN Discipline

Litigation, Procedure & Dispute Resolution eJournals; LSN Subject Matter eJournals; Constitutional Law, Jurisprudence & Legal Philosophy eJournals; Financial Economics Network; delete2; Management Research Network; Economics Research Network; Legal Scholarship Network; Entrepreneurship Research & Policy Network; Law School Research Papers - Legal Studies; Law School Research Papers - Public Law & Legal Theory; Information Systems & eBusiness Network; Political Science Network

Abstract

Analytical and empirical studies of the process of legal proof have sought to explain the process through various aspects of probability theories These probabilitybased explanations have neglected the extent to which explanatory considerations themselves explain juridical proof Similar to many scientific inferences juridical inferences turn on how well the evidence would explain certain conclusions This inferential process well known in the philosophy of science is referred to as abduction or inference to the best explanation In this essay we provide a detailed account of the process in general an explanationbased account of juridical proof in particular a comparison with probability approaches and the theoretical and practical consequences of the debate We demonstrate how an explanationbased approach itself better explains juridical proof at both the macro and microlevels than the probability approaches The macrolevel issues include burdens of proof in civil and criminal cases and related issues involving summary judgment judgments as a matter of law and sufficiencyoftheevidence standards The microlevel issues include the relevance and probative value and thus the admissibility of any individual item of evidence from firsthand observations to complex scientific or statistical evidence The explanatory considerations can provide practical guidance and constraint for decisionmaking on each of these issues More generally we demonstrate that the explanatory and probability approaches are not alternatives The explanatory considerations are more fundamental on which the probability accounts are parasitic Thus to extent the probability approaches account accurately for and supplement explanatory considerations they may improve our understanding to the extent they do not they risk mismodeling the process

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