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A Practical Solution to the Reference Class Problem

Columbia Law Review, Forthcoming

Brooklyn Law School, Legal Studies Paper No. 135

22 Pages Posted: 12 Mar 2009  

Edward K. Cheng

Vanderbilt Law School

Date Written: March 11, 2009

Abstract

The "reference class problem" is a serious challenge to the use of statistical evidence that arguably arises every day in wide variety of cases, including toxic torts, property valuation, and even drug smuggling. At its core, it observes that statistical inferences depend critically on how people, events, or things are classified. As there is (purportedly) no principle for privileging certain categories over others, statistics become manipulable, undermining the very objectivity and certainty that make statistical evidence valuable and attractive to legal actors. In this paper, I propose a practical solution to the reference class problem by drawing on model selection theory in statistics. The solution has potentially wide-ranging and significant implications for statistics in the law. Not only does it remove another barrier to the use of statistics in legal decisionmaking, but it also suggests a concrete framework by which litigants can present, evaluate, and contest statistical evidence.

Keywords: "reference class", statistics, model selection, "statistical evidence"

Suggested Citation

Cheng, Edward K., A Practical Solution to the Reference Class Problem (March 11, 2009). Columbia Law Review, Forthcoming; Brooklyn Law School, Legal Studies Paper No. 135. Available at SSRN: https://ssrn.com/abstract=1357682

Edward K. Cheng (Contact Author)

Vanderbilt Law School ( email )

131 21st Avenue South
Nashville, TN 37203-1181
United States
615-875-7630 (Phone)

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