Challenges for Comparative Fact-Finding

Abstract

A paradigm shift is underway in scholarship on legal fact-finding. Recent work points clearly and consistently in the direction that persuasion is the product of purely comparative assessments of factual propositions. This paper comments on the philosophical roots of this shift to a comparative paradigm. It also highlights two serious challenges for the comparative approach: (1) articulation of a coherent test of the beyond-a-reasonable-doubt standard, and (2) definition of what it means for a fact-finder to weigh an unspecific or disjunctive factual claim.

Keywords: Fact Finding, Burden of Persuasion, Comparative Inference