Professor Edward K. Cheng of Vanderbilt University School of Law has posted Reconceptualizing the Burden of Proof, forthcoming in Yale Law Journal.
Here is the abstract:
The burden of proof is conventionally described as an absolute probability threshold – for example, the preponderance standard is commonly equated to anything greater than 0.5. In this Essay, I argue that this characterization of the burden of proof is wrong. Rather than focus on an absolute threshold, the Essay reconceptualizes the preponderance standard as a probability ratio, and I show how doing so eliminates many of the classical problems associated with probabilistic theories of evidence. Using probability ratios eliminates the so-called Conjunction Paradox, and developing the ratio tests under a Bayesian perspective further explains the Blue Bus problem and other puzzles surrounding statistical evidence. By harmonizing probabilistic theories of proof with recent critiques advocating for abductive models (inference to the best explanation), the Essay hopes the bridge a gap in current evidence scholarship.