Challenges for comparative fact-finding
| Author | Sean P Sullivan |
| DOI | 10.1177/1365712718813798 |
| Published date | 01 April 2019 |
| Date | 01 April 2019 |
| Subject Matter | Articles |
Article
Challenges for comparative
fact-finding
Sean P Sullivan
University of Iowa College of Law, Iowa, USA
Abstract
A paradigm shift is underway in scholarship on legal fact-finding. Recent work clearly and
consistently suggests that persuasion is the product of purely comparative assessments of
factual propositions. This paper comments on the philosophical roots of the comparative
paradigm. It also highlights two outstanding challenges for the comparative approach: (1)
specification of a purely comparative test for the beyond a reasonable doubt standard, and (2)
articulation of the mechanics by which unspecific or disjunctive factual propositions are sup-
posed to be weighed in comparative fact-finding.
Keywords
fact-finding, comparative inference, burden of persuasion
I often wish ...that I could rid the world of the tyranny of facts. What are facts but compromises? A fact
merely marks the point where we have agreed to let investigation cease. (Anonymous, 1906: 712)
I agree with Allen and Pardo that a paradigm shift is under way in scholarship on legal fact-finding (see
Allen and Pardo, 2019). So much recent work points in the same direction—that persuasion is the
product of purely comparative assessments of factual propositions—that those unable to perceive this
shift could only be those who refuse to see.
1
I worry, though, that some second-order debates risk
obscuring this growing consensus.
I do not, for example, perceive any antagonism between formal and qualitative models of the fact-
finding process. As I have written elsewhere, I agree with Allen and Pardo that Bayesian probability
concepts are often inappropriate as a model of legal fact-finding (see Sullivan, 2019: § IV). But that is
Corresponding author:
Sean P Sullivan, University of Iowa College of Law, Iowa, IA 52242, USA.
E-mail: sean-sullivan@uiowa.edu
1. Proposals to approach fact-finding in comparative terms include many qualitative models of fact-finding. See, e.g. Pardo and
Allen (2008) (comparing factual theories in terms of their explanatory power); Simon (2004) (comparing factual theories in
terms of the concept of coherence); Allen (1994) (comparing factual theories in terms of relative plausibility); Pennington and
Hastie (1993) (comparing factual stories in terms of their psychological salience). Other proposals include formal models of
comparative fact-finding. See, e.g. Sullivan (2019) (comparing factual theories in terms of likelihoods); Clermont (2015)
(comparing factual theories in terms of belief functions); Cheng (2013) (comparing factual theories in terms of probabilities).
The International Journalof
Evidence & Proof
2019, Vol. 23(1-2) 100–106
ªThe Author(s) 2018
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DOI: 10.1177/1365712718813798
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