Judging Models in Legal Fact-Finding

52 Pages Posted: 22 Dec 2015 Last revised: 12 Jan 2016

Date Written: January 12, 2016

Abstract

Scientific, statistical, and economic models are often crucial in legal fact-finding. Competing models yielding different inferences may represent the same phenomenon. This article studies the judgment of models in legal fact-finding, in particular where competing models and inferences must be judged. Three categories of the use of models are identified: formal models provided by experts, formal models not scrutinized as expert knowledge, and the use of models more informally to aid storytelling. In the first case, the nature of expert knowledge makes it difficult for non-expert fact-finders to judge the conclusions, which emphasizes the importance of judging the reliability of the methods used to reach the conclusions, both on their own terms and in conjunction with the specific circumstances of the case. In the second case, the challenge is to benefit from the logic of models, but avoid tautologies disguised as expert knowledge. In the latter situation, the methods applied may not be transparent, which emphasizes the need to judge the conclusions on the basis of explanatory power. It is argued that it is important to judge models according to the appropriate standard dependent on their use. The study mainly draws on examples from antitrust, regulation, and torts.

Keywords: legal fact-finding, evidence, judicial review, model selection, model-based inference, antitrust, regulation

Suggested Citation

Østbye, Peder, Judging Models in Legal Fact-Finding (January 12, 2016). Available at SSRN: https://ssrn.com/abstract=2706551 or http://dx.doi.org/10.2139/ssrn.2706551

Peder Østbye (Contact Author)

Norges Bank ( email )

P.O. Box 1179
Oslo, N-0107
Norway

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