Probabilities in Probable Cause And Beyond: Statistical Versus Concrete Harms

73 Law and Contemporary Problems 69 (2010)

37 Pages Posted: 29 May 2013  

Sherry F. Colb

Cornell University - Law School

Date Written: 2010

Abstract

Colb surfaces the "statistical versus concrete harms" disparity in judicial (and more broadly, human) reactions to probability-based behavior. In particular, it identifies the disparity in case law that either explicitly relies on the distinction as a normatively proper ground for legal decisions or that operates in a manner best explained by resort to this distinction. Though the paper is primarily descriptive, it suggests, tentatively, that lawmakers, judges, and juries should exercise greater care and deliberation in applying what may seem like a "natural" approach to distinguishing between permissible and impermissible harm. It is thus a plea for "conscious" consideration of the statistical-concrete distinction, which is sometimes applied in an unthinking fashion.

Suggested Citation

Colb, Sherry F., Probabilities in Probable Cause And Beyond: Statistical Versus Concrete Harms (2010). 73 Law and Contemporary Problems 69 (2010). Available at SSRN: https://ssrn.com/abstract=2271233

Sherry F. Colb (Contact Author)

Cornell University - Law School ( email )

Myron Taylor Hall
Ithaca, NY 14853
United States

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