Aldous Huxley once said: most human beings have an almost infinite capacity for taking things for granted. And that may well be true of judges when it comes to thinking about burdens of proof. We apply them everyday. We know the terms but for many of us we rarely discuss what these concepts, which are so core to what we do, mean.

Kevin M. Clermont (Cornell Law School) has posted Staying Faithful to the Standards of Proof (Cornell Law Review, Forthcoming) on SSRN. Here is the abstract:

Academics have never quite understood the standards of proof or, indeed, much about the theory of proof. Their formulations beget probabilistic musings, which beget all sorts of paradoxes, which in turn beget radical reconceptions and proposals for reform. The theoretical radicals argue that the law needs some basic reconception such as recognizing the aim of legal proof as not at all a search for truth but rather the production of an acceptable result, or that the law needs some shattering reform such as greatly heightening the standard of proof on each part of the case to ensure a more-likely-than-not overall result.

This Article refutes all those baroque re-readings. It shows that the standards of proof, properly understood on the law’s own terms without a probabilistic overlay, work just fine. The law tells fact finders to compare their degree of belief in the alleged fact to their degree of contradictory disbelief. Following that instruction resolves mathematically the paradoxes that traditional probability theory creates for itself. Most surprising, the burden of proof, by which the proponent must prove all the elements and the opponent need disprove only one, does not produce an asymmetry between the parties. The law’s standards of proof need no drastic reconception or reform — because the law knew what it was doing all along.

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