The Error of Equal Error Rates

Posted: 29 Feb 2008

See all articles by David H. Kaye

David H. Kaye

PSU - Penn State Law (University Park); ASU - College of Law & School of Life Sciences


The more-probable-than-not burden of persuasion applicable to most civil cases sometimes is said to implement the policy objective of equalizing the rates of (1) erroneous verdicts for plaintiffs and (2) erroneous verdicts for defendants. This paper shows that this claim is unfounded and untenable. It concludes that the more-probable-than-not standard reflects a different, and more appropriate conception of equality - one that considers the expected losses associated with errors rather than the frequencies of errors.

Suggested Citation

Kaye, David H., The Error of Equal Error Rates. Law, Probability and Risk, Vol. 1, pp. 3-8, July 2002 , Available at SSRN:

David H. Kaye (Contact Author)

PSU - Penn State Law (University Park)

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University Park, PA 16802
United States


ASU - College of Law & School of Life Sciences ( email )

111 E Taylor St.
Phoenix, AZ 85004
United States


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