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Rethinking the Standards of Proof

Rethinking the Standards of Proof MICHELE TARUFFO A recent article entitled A Comparative View of Standards of Proof by Kevin Clermont and Emily Sherwin has th e merit of dis­ cussing an issue that is not frequently analyzed and of proposing some interesting remarks about several complex and puzzling topics. Since the authors' intention seems to be also that of startin g a de­ bate, this is a welcome opportunity, for a civilian lawyer and a com- parativist to tak e part. The Clermont and Sherwin essay is stimulating and provocative. Their main claim, that in civil litigation courts should apply a stan­ dard of proof based on th e "preponderance of evidence" or on th e "pre­ vailing probability," is sound. However, I believe -in contrast with their approach—that the Bayesian interpretation of judicia l decision­ making in term s of quantitativ e probability is largely unsatisfactory, and tha t models based on logical probability and fuzzy logic may pro­ vide better rationalizations of th e evaluation of proofs. On the other hand, my main impression is tha t Clermont and Sherwin's discourse suffers from some substantial flaws. Since I be­ lieve that eliciting gaps and misunderstandings is an essential part of th http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png American Journal of Comparative Law Oxford University Press

Rethinking the Standards of Proof

American Journal of Comparative Law , Volume 51 (3) – Jul 1, 2003

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Publisher
Oxford University Press
Copyright
© American Society of Comparative Law 2003
ISSN
0002-919X
eISSN
2326-9197
DOI
10.2307/3649122
Publisher site
See Article on Publisher Site

Abstract

MICHELE TARUFFO A recent article entitled A Comparative View of Standards of Proof by Kevin Clermont and Emily Sherwin has th e merit of dis­ cussing an issue that is not frequently analyzed and of proposing some interesting remarks about several complex and puzzling topics. Since the authors' intention seems to be also that of startin g a de­ bate, this is a welcome opportunity, for a civilian lawyer and a com- parativist to tak e part. The Clermont and Sherwin essay is stimulating and provocative. Their main claim, that in civil litigation courts should apply a stan­ dard of proof based on th e "preponderance of evidence" or on th e "pre­ vailing probability," is sound. However, I believe -in contrast with their approach—that the Bayesian interpretation of judicia l decision­ making in term s of quantitativ e probability is largely unsatisfactory, and tha t models based on logical probability and fuzzy logic may pro­ vide better rationalizations of th e evaluation of proofs. On the other hand, my main impression is tha t Clermont and Sherwin's discourse suffers from some substantial flaws. Since I be­ lieve that eliciting gaps and misunderstandings is an essential part of th

Journal

American Journal of Comparative LawOxford University Press

Published: Jul 1, 2003

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