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

Journal of Empirical Legal Studies. Vol. 14, 2017

31 Pages Posted: 19 Apr 2023

See all articles by Ryan D. Enos

Ryan D. Enos

Harvard University

Anthony Fowler

University of Chicago - Harris School of Public Policy

Christopher Havasy

Penn State Dickinson Law

Date Written: 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 ( 2017). Journal of Empirical Legal Studies. Vol. 14, 2017, Available at SSRN: https://ssrn.com/abstract=4411018 or http://dx.doi.org/10.2139/ssrn.4411018

Ryan D. Enos

Harvard University ( email )

Anthony Fowler (Contact Author)

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

1155 East 60th Street
Chicago, IL 60637
United States

Christopher Havasy

Penn State Dickinson Law ( email )

150 S College St
Carlisle, PA 17013
United States

HOME PAGE: http://www.chrishavasy.com

Do you have negative results from your research you’d like to share?

Paper statistics

Downloads
76
Abstract Views
293
Rank
573,005
PlumX Metrics