Evidence and Association: Epistemic Confusion in Toxic Tort Law

Abstract

Attempts at quantification turn up in many areas within the modern courtroom, but nowhere more than in the realm of toxic tort law. Evidence, in these cases, is routinely presented in statistical form. The vagueness inherent in phrases such as ‘balance of probabilities’ and ‘more likely than not’ is reinterpreted to correspond to precise mathematical values. Standing alone these developments would not be a cause for great concern. But in practice courts and commentators have routinely mixed up incompatible quantities, leading to grave injustice. I argue that these confusions result from an unjustified assumption of universal causal determinism.

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