Michael S. Pardo (University of Alabama School of Law) has posted Second-Order Proof Rules (Florida Law Review, Vol. 61, 2009) on SSRN. Here is the abstract:
Proof rules in law dictate when facts have been proven. They do so by specifying a level of proof such as by a preponderance of the evidence, by clear and convincing evidence, or beyond a reasonable doubt. The rules function to serve two goals: accuracy (minimizing errors) and fairly allocating the risk of error. I argue that these rules fail to serve their goals, and I propose and argue for second-order proof rules that will better align decision-making with these goals. The second-order rules have the potential to improve not only factual decision-making at trial but also decisions implementing procedural rules that depend on judgments about the sufficiency of the evidence. These include summary judgment and judgment as a matter of law in civil cases and sufficiency challenges by criminal defendants.
And from the text:
Our contract-dispute example can illustrate the difference. Under a probability
approach, the decision-maker assesses the probability of each element of a contract, given
(or conditioned upon) the evidence.107 Under the explanatory approach, by contrast, the
decision-maker assesses whether the existence of a contract better explains the evidence
and disputed events than other competing explanations (e.g., that the plaintiff is lying or
mistaken). This decision-making process occurs in two steps: (1) identifying potential
explanations, and (2) selecting the one that provides the best or better explanation. At the
first step, decision-makers rely primarily on the parties to provide and frame the potential
explanations.108 At the second step, a number of general criteria provide grounds to
assess the strength or weaknesses of explanations. These criteria include: consistency,
simplicity, coherence with background beliefs, consilience (the extent to which many and
different kinds of facts are explained), and the absence of ad hoc premises.109 Most
important with this second step is its comparative nature. Explanations are not the better
or best in isolation; they are better or worse as compared with any available
alternatives.110
Very interesting & recommended.