Legal Decisions and the Reference Class Problem
| Published date | 01 October 2007 |
| Date | 01 October 2007 |
| DOI | 10.1350/ijep.2007.11.4.274 |
| Subject Matter | Article |
274 (2007) 11 E&P 274–285 E & P
LEGAL DECISIONS AND THE REFERENCE CLASS PROBLEM
Legal decisions and the
reference class problem
By Mark Colyvan*and
Professor of Philosophy, University of Sydney
Helen M. Regan†
Assistant Professor of Biology, University of California
here has been a long history of discussion on the usefulness of formal
methods in legal settings.1Some of the recent debate has focused on
foundational issues in statistics, in particular, how the reference class
problem affects legal decisions based on certain types of statistical evidence.2Here
we examine aspects of this debate, stressing why the reference class problem
presents serious difficulties for the kinds of statistical inferences under consider-
ation and the relevance of this for the use of statistics in the courtroom. We also
consider the relevance of foundational statistical issues in the broader context of
formal decision theory. In particular, we are interested in cases where the stakes
are high—as they are in many legal decisions—and how uncertainty resulting from
foundational problems in statistics impacts upon such decisions.
1 For example, see L. H. Tribe, ‘Trial by Mathematics: Precision and Ritual in the Legal Process’ (1971)
84 Harvard Law Review 1329, and, more recently, R. W. Wright, ‘Causation, Responsibility, Risk,
Probability, Naked Statistics, and Proof: Pruning the Bramble Bush by Clarifying the Concepts’
(1998) 73 Iowa Law Review 1001, J. L. Gastwirth, Statistical Science in the Courtroom (Springer-Verlag:
New York, 2000) and P. Tillers, ‘Introduction: Three Contributions to Three Important Problems in
Evidence Scholarship’ (1997) 18 Cardozo Law Review 1875.
2 See M. Colyvan, H. M. Regan and S. Ferson, ‘Is It a Crime to Belong to a Reference Class?’ (2001) 9
Journal of Political Philosophy 168 (reprinted in H. E. Kyburg and M. Thalos (eds), Probability Isthe Very
Guide of Life (Open Court: Chicago, 2003)), P. Tillers, ‘If Wishes Were Horses: DiscursiveComments
on Attempts to Prevent Individuals from Being Unfairly Burdened by their Reference Classes’
(2005) 4 Law, Probability, and Risk 33 and R. J. Allen and M. S. Pardo, ‘The Problematic Value of
Mathematical Models of Evidence’ (2007) 36 Journal of Legal Studies 107.
T
* Email: mcolyvan@usyd.edu.au. I would like to thank members of the TC Beirne School of Law at the
University of Queensland, where an early draft of this article was presented, for their many
valuable comments and suggestions. I am also indebted to Jason Grossman and Lena Wahlberg for
useful discussions on the topic of this article.
† Email: helen.regan@ucr.edu.
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