Explanations and the Preponderance Standard: Still Kicking Rocks with Dr. Johnson
48 Seton Hall Law Review, Forthcoming
12 Pages Posted: 2 Aug 2018
Date Written: 2018
This paper responds to a previously unpublished article by the late evidence scholar (and our friend) Craig Callen. Craig’s article and our response will be published in the Seton Hall Law Review, in a symposium issue dedicated to the work of Michael Risinger. We thank Michael for unearthing Craig’s manuscript—which discusses our theory of juridical proof in terms of the relative plausibility of competing explanations—and for inviting us to respond. In this response, we discuss developments in the literature since the manuscript was written, and we explain how our theory accommodates the concerns Craig raises regarding sufficiency of the evidence. Our discussion focuses, as does Craig’s article, on motions for summary judgment and judgment as a matter of law, using employment-discrimination cases as illustrative.
Keywords: evidence, juridical proof, probability, plausibility, explanations, standards of proof, preponderance of the evidence, summary judgment, judgment as a matter of law
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