The Negative Effect Fallacy: A Case Study of Incorrect Statistical Reasoning by Federal Courts

30 Pages Posted: 11 Aug 2017

See all articles by Ryan D. Enos

Ryan D. Enos

Harvard University

Anthony Fowler

University of Chicago - Harris School of Public Policy

Christopher Havasy

Harvard Law School; Harvard University, Department of Government

Date Written: September 2017

Abstract

This article examines the negative effect fallacy, a flawed statistical argument first utilized by the Warren Court in Elkins v. United States. The Court argued that empirical evidence could not determine whether the exclusionary rule prevents future illegal searches and seizures because “it is never easy to prove a negative,” inappropriately conflating the philosophical and arithmetic definitions of the word negative. Subsequently, the Court has repeated this mistake in other domains, including free speech, voting rights, and campaign finance. The fallacy has also proliferated into the federal circuit and district court levels. Narrowly, our investigation aims to eradicate the use of the negative effect fallacy in federal courts. More broadly, we highlight several challenges and concerns with the increasing use of statistical reasoning in court decisions. As courts continue to evaluate statistical and empirical questions, we recommend that they evaluate the evidence on its own merit rather than relying on convenient arguments embedded in precedent.

Suggested Citation

Enos, Ryan D. and Fowler, Anthony and Havasy, Christopher, The Negative Effect Fallacy: A Case Study of Incorrect Statistical Reasoning by Federal Courts (September 2017). Journal of Empirical Legal Studies, Vol. 14, Issue 3, pp. 618-647, 2017, Available at SSRN: https://ssrn.com/abstract=3016685 or http://dx.doi.org/10.1111/jels.12158

Ryan D. Enos (Contact Author)

Harvard University ( email )

Anthony Fowler

University of Chicago - Harris School of Public Policy ( email )

1155 East 60th Street
Chicago, IL 60637
United States

Christopher Havasy

Harvard Law School ( email )

1875 Cambridge Street
Cambridge, MA 02138
United States

Harvard University, Department of Government ( email )

Cambridge, MA
United States

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