THE LAW'S AVERSION TO NAKED STATISTICS AND OTHER MISTAKES

Abstract

A vast literature has developed probing the law’s general aversion to statistical/probability evidence in general and its rejection of naked statistical evidence in particular. This literature rests on false premises. At least so far as U.S. law is concerned, there is no general aversion to statistical forms of proof and even naked statistics are admissible when the evidentiary proffer meets the normal standards of admissibility, the most important of which is reliability. The belief to the contrary rests upon a series of mistakes: most importantly, mismodeling of the structure of legal systems and the nature of common law decision making. Contributing to these mistakes is the common methodology in this literature of relying on weird hypotheticals that mismodel the underlying legal relations and contain impossible epistemological demands. Collectively, these phenomena have distracted attention from issues that actually affect real legal systems.

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