-- Cavaleri, Sylvie Cécile, Digitalizing Dispute Resolution Processes: The Example of Denmark (SSRN 07.2017)
-- Sullivan, Sean Patrick, A Likelihood Story: The Theory of Legal Fact-Finding (SSRN 09.2017)
Abstract: For over 50 years, courts and scholars have tried to explain fact-finding, and burdens of persuasion, in terms of the probability of the facts given the evidence. The exercise has not been a success. The problem is reliance on Bayesian posterior probabilities. Fact-finding is not about probability. It’s about likelihood. The difference is more than semantic. Where Bayesian probability asks about the probability of the facts given the evidence, likelihood asks about the probability of the evidence given the facts. And where probability formalizes the concept of personal belief, likelihood formalizes the concept of weight-of-evidence alone. Using the statistical properties of likelihoods, I show that every burden of persuasion in use today can be reduced to the same rule of likelihood reasoning. This likelihood theory of fact-finding formalizes story-based descriptions of the cognitive process of fact-finders, and illustrates the smooth progression of story-based models to heightened burdens of persuasion. It also resolves many of the paradoxes that beset the Bayesian probability theory of fact-finding, and clarifies the nature of uncertainty and appropriate form of inference in many fact-finding applications.
