ALBERT

Description: The tension between the meaning of causality in science and law or public policy is well-known; however, defendants in product liability cases or industries that might be affected by a government regulation may try to convince the factfinder to require evidence of a causal relationship that meets the standards of science. From the perspective of public health, however, people may be exposed unnecessarily to a health risk during the time period between the establishment of reasonably strong evidence of a causal relationship and the overwhelming evidence required for scientific causality. The Bayesian paradigm enables one to update information from epidemiologic studies as they accumulate, providing estimates of the probability that the relative risk of a particular harm from exposure exceeds a threshold value, e.g. 2.0 or 4.0 that is sufficient to meet the preponderance of the evidence standard or to support a health initiative. In order to diminish the role of the initial prior distribution, which may be quite subjective, the first case-control study or an analysis of adverse event and case reports is used to determine two prior distributions. One is the most favourable to the defendant, or industry that might be regulated, which is consistent with the previous data. The other is centred on or near the estimated relative risk from the first study. The method is applied to the studies that linked aspirin use to Reye syndrome and demonstrates that the evidence of a causal association was sufficiently strong in 1982, when the Food and Drug Administration first proposed that the public be warned of the risk, to support the regulation. Thus, lives would have been saved had the warning been given at the end of 1982 rather than in early 1985.

Description: In law, inferences of causation are sometimes made through a structured process in which multiple participants play various roles, and make decisions concerning various logical components of the overall inference (such as legal rules, policy objectives, presumptions, evidence, burdens of proof and findings of fact). This article illustrates such a process using empirical research into compensation decisions in the USA for injuries allegedly caused by vaccinations. Empirical research into actual legal processes is essential, in order to discover how various players approach their sub-tasks of decision-making. It also provides insights for areas outside of law, such as non-monotonic logic, cognitive science, sociology and artificial intelligence.

Description: Situations of causal factual uncertainty are relatively common in law. The problems and difficulties regarding ‘factual causation’ in law point to the need of ‘evidence’ and ‘proof’ models that are adequate and capable to accommodate the tests and methodologies used to explain and demonstrate it in a legal context. Given the configuration of the situations of causal factual uncertainty and the available ‘evidence’ and ‘proof’ models, I argue that it is justified to use an ‘argumentative-narrative’ model for ‘proving causation’ in law. However, considering that each model of ‘evidence’ and ‘proof’ reveals a different kind of ‘rationality’ that can still be viewed in different ways, I also argue that we must try to match the perspective we have on the ‘rationality’ behind the chosen model of ‘evidence’ and ‘proof’ with the ‘rationality’ underlying ‘causation’ in law.

Description: At least in some cases, the values confronted in legal decision-making appear to be incommensurable. Some legal theorists resist incommensurability because they fear that this presents an overwhelming obstacle to rational decision-making. By offering a close analysis of proportionality and, more particularly, measures of proportional value satisfaction, I show that this fear is unfounded. Comparative measures of proportional value satisfaction do not require the values to be commensurable. However, assuming incommensurability presents us with the problem of public significance in the proportional satisfaction of values. When two values are commensurable, this public significance is provided by the mediating effects of the overarching third value that provides the common measure of the values. However, when this common measure is removed, then the public significance of value satisfaction must be otherwise achieved. This is why I propose an equal proportional value satisfaction as the most appropriate proportionality maximand. Under equal proportional value satisfaction, the proportional satisfaction of any one value has significance for each and every other value. This kind of public significance is interpersonal rather than impersonal (or second-personal rather than third-personal). The article then shows that the legal process that is most appropriate to equal proportionality is a process that implements defeasible legal rules.

Description: In order to allocate the risk between parties in legal adjudication, we use evidentiary techniques with the main device among them being the standard of proof (SoP). The traditional view holds the grade of probability to be the parameter that shifts when moving to different standards. However, as soon as we dig slightly deeper, an incoherent picture is being revealed. In this article, I challenge the accepted view and try to show that it faces insurmountable problems concerning the rationality, the grammatical consistency and the impact of the SoP for the acceptability of verdicts. At the end of the article, I shortly discuss the theory of epistemological contextualism and propose a framework that allows rational distinctions to be drawn between different standards of proof. In the second part of this project (forthcoming), I will defend a contextualist view according to which shifting parameter is not the grade of (aleatory) probability, but instead the Set of Epistemic Defeaters in play.

Description: This article focuses on the question of how decision makers with no relevant scientific background can (if at all) legitimately evaluate conflicting scientific expert testimonies and determine their relative reliability. Sceptics argue that non-experts can never reach justifiable conclusions regarding the merits of conflicting expert testimonies because they lack the fundamental epistemic capacity to make such judgement calls. In this article, I draw on works on epistemology, philosophy of practical reasoning, philosophy of science, science and technology studies, and legal theory in order to scrutinize recent proposals to solve the problem of conflicting scientific expert testimonies. Addressing this question is of ultimate importance due to the idea that immanent in the idea of rule-of-law there is an intellectual due process norm, which articulates that epistemically arbitrary legal decisions are also not legally justified. This article is divided into two Sections. In Section 2 , I describe the basic philosophical inquiries underlying the debate about expert testimony. In particular, I first elaborate on the philosophy of testimony and its epistemic justifications, then move to the idea of epistemic deference, and finish with philosophical accounts of expertise. Section 3 presents the problem of conflicting scientific expert testimonies and analyses recent attempts to solve it as formulated by Ward Jones, Alvin Goldman and Scott Brewer. I argue that there is no single criterion (or set of criteria) upon which the non-expert could rely in order to make a rationally justified decision in each and every case in which he faces conflicting scientific expert testimonies. The alternative view here defended is to stop looking for an epistemic panacea and accept the idea that testimonial reliability operates differently within different kinds of testimony—and differently within the same kind of testimony at different times.

Description: The criterion of bioequivalence of two drugs in infringement cases may differ from the requirements used for drug approval by the FDA. In Adams v . Perrigo , 1 the Federal Circuit examined three different sets of criteria for judging bioequivalence. The statistical properties of those criteria are explored and evaluated. Our results support the appellate court’s decision to impose less stringent requirements for bioequivalence in infringement cases.

Description: The North Carolina Racial Justice Act allows defendants to submit statistical studies of prosecutorial actions pertaining to their seeking the death penalty or in making peremptory challenges. These studies may consider data from four geographical regions: the state, county, judicial division or prosecutorial district. A study of the effect of race on peremptory challenges in death penalty cases demonstrating statistically significant disparities disadvantaging Black defendants has been submitted in several cases. This comment shows that a more appropriate statistical analysis yields much stronger statistical evidence that race entered into the peremptory challenge process in Randolph County than the affidavit submitted by the authors of the study. A subsequent sensitivity analysis indicates that in order for a characteristic to explain the highly statistically significant disparity, it would need to increase the odds of an individual being challenged by a factor of three and more than twice as many Black venire members would need to possess that characteristic as non-Blacks. Since the data examined excluded potential jurors who had been removed for cause, it may be difficult for the state to find a legitimate reason justifying the racial disparity.

Description: This article critically evaluates experiments used to justify inferences of specific source attribution (‘individualization’) to ‘100% certainty’ and ‘near-zero’ rates of error claimed by firearm toolmark examiners in court testimonies, and suggests approaches for establishing statistical foundations for firearm toolmarks practice that two recent National Academy of Science reports confirm do not currently exist. Issues that should be considered in the earliest stages of statistical foundational development for firearm toolmarks are discussed.

Description: Much debate exists between Frequentist and Bayesian methods in statistics. In the evaluation of evidence, the likelihood ratio is credited with quantifying the value of evidence in favour of one or other proposition by considering the probability of the evidence conditional on each proposition and this then converts the Bayesian prior odds into the posterior odds. Motivated by this approach, this paper considers an alternative p -value-based likelihood ratio by explicitly taking into account the behaviour of the Frequentist p -value under both hypotheses, rather than restricting focus solely on the null hypothesis. It is shown that by accommodating the alternative hypothesis, analysis leads to inferential conclusions which are consistent with Bayesian methods.