Paradoxes, Gedanken Experiments and the Burden of Proof: A Response to Dr. Cohen's Reply

11 Pages Posted: 30 May 2009

See all articles by David H. Kaye

David H. Kaye

The Pennsylvania State University (University Park) – Penn State Law; Arizona State University - Sandra Day O'Connor College of Law - School of Life Science

Date Written: 1981

Abstract

This article responds to L. Jonathan Cohen's critique of the author's position regarding the problem of naked statistical evidence. Cohen argues that the kind of probability at work in litigation does not conform to the axioms of mathematical probability. The author responds by suggesting that the familiar theory of probability needs no revision to account for the reluctance of a few courts to permit plaintiffs to prevail on the strength of background statistics alone. One need not adopt Dr. Cohen's esoteric mathematical structure to explain the burden of proof in civil cases. The article shows that whether or not one accepts the subjective interpretation of probability, nothing in Cohen's most recent paper establishes that forensic probabilities are incommensurable with the usual mathematical axioms. It also considers Cohen's claim that the subjective interpretation is a dangerously inappropriate paradigm for the courts.

Keywords: Burden of Proof, Statistical Evidence, Civil Trial

Suggested Citation

Kaye, David H., Paradoxes, Gedanken Experiments and the Burden of Proof: A Response to Dr. Cohen's Reply (1981). Arizona State Law Journal, Vol. 1981, 1981. Available at SSRN: https://ssrn.com/abstract=1411785

David H. Kaye (Contact Author)

The Pennsylvania State University (University Park) – Penn State Law

Lewis Katz Building
University Park, PA 16802
United States

HOME PAGE: http://www.personal.psu.edu/dhk3/index.htm

Arizona State University - Sandra Day O'Connor College of Law - School of Life Science ( email )

111 E Taylor St.
Phoenix, AZ 85004
United States

HOME PAGE: http://www.personal.psu.edu/dhk3/index.htm

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