Clarifying the Burden of Persuasion and Bayesian Decision Rules: A Response to Professor Kaye
| DOI | 10.1177/136571270000400402 |
| Published date | 01 December 2000 |
| Author | Ronald J. Allen |
| Date | 01 December 2000 |
| Subject Matter | Article |
Clarifying the burden
of
persuasion and Bayesian
decision rules:
A
response
to
Professor Kaye
By
Ronald
J.
Allen'
John Henry Wigmore Professov, Northwestern University School
of
Law
n a recent article in this journal, Professor David Kaye intensely
examined some short remarks of mine concerning the relationship
between formalisms and juridical proof. According to Professor Kaye
these were grandiose.' confused,' rhet~rical,~ and verged on 'sheer fantasy'!
It was also argued that
I
had made some mathematical mistakes.
To
the
contrary, Professor Kaye has made the old philosophical error of a category
mistake. He has mistaken comments concerning the general utility of certain
formalisms for understanding
or
improving the juridical process, for
comments about the internal operation
of
a particular formalism, in this case
Bayesian subjective expected utility theory
(SEU).
Were Professor Kaye's mistake the only matter of interest, it would not justify
a response, but there is more. Professor Kaye makes
two
separate arguments
in his response to me, although they are not clearly demarcated. He argues
that jurors would do well to employ Bayes' theorem in their reasoning about
evidence and that Bayesian decision theory generates the correct rule
of
decision at trial of a preponderance of the evidence (in civil cases) understood
as a cardinal probability exceeding
0.5
(understood, of course, as a subjective
degree of belief rather than an objective measure of any sort).' There is very
little reason to believe either proposition. Moreover, although Professor Kaye
I
am indebted to Craig Callen. Vern Walker, and
I
am particularly indebted to an anonymous
reviewer
for
helpful comments.
1
D.
H.
Kaye, 'Clarifying the Burden
of
Persuasion: What Bayesian Decision Rules Do and
Do
Not
2
Ibtd.
n. 21 at
6.
3
Bid.
at
18.
4
Bid.
at 18, n.
50.
5
The second argument is necessarily predicated on the first.
Do'
(1999)
3
E
&
P
1
at
3.
246
THE
INTERNATIONAL
JOURNAL
OF
EVIDENCE
&
PROOF
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