Article by Craig R. Callen
In his commentary Statistical-Probability Evidence and the Appearance of Justice, Professor Daniel Shaviro argues that courts should allow verdicts to stand even when they are based “entirely,” “only,” or “solely” on statistical evidence—evidence that quantitatively states a risk of error. He thinks a legal doctrine that would entail a contrary result says “much about us.” As is often the case when we are told something says much about us, Professor Shaviro does not intend flattery.
He principally attacks Smith v. Rapid Transit, Inc., which he treats as emblematic of erroneous thinking about statistical evidence. His criticism of Smith, however, rests on flawed assumptions about the nature of proof and about the courts' interests and role in litigation. Professor Shaviro assumes that an atom of statistical data can somehow prove a fact in issue without any reliance on other evidence or on the factfinder's experience and beliefs about the empirical world. In other words, he assumes (contrary to theories of mathematical inference about the empirical world) that the data can be probative a priori.
Professor Shaviro apparently assumes that the courts have no valid concerns that might justify holding a piece of information insufficient to support a verdict—neither the degree of accuracy or uniformity of enforcement of rules, nor the allocation of resources within society or the judicial system. In sum, Professor Shaviro's argument would entail the conclusion that there is never good reason for summary judgment or a directed verdict, at least in a civil case.
This Article explores both Professor Shaviro's argument and the reasons it fails. In so doing, it suggests a view of evidence that can accommodate statistics without burying human inference in scientism. Initially, though, the reader should be aware of Smith's role in discussions of whether “bare” statistical evidence is adequate to support a verdict.
About the Author
Craig R. Callen. Professor of Law, Mississippi College School of Law. B.A. 1971, University of Iowa; J.D. 1974, Harvard Law School.
Citation
65 Tul. L. Rev. 457 (1991)