CRITICAL ANALYSIS OF LAW WORKSHOP
presents
Talia Fischer
Tel Aviv University
The Case for Sensitivity
Tuesday, October 13, 2013
12:30 - 2:00
Solarium (Room FA2), Falconer Hall
84 Queen's Park
Statistical evidence is the subject of a heated debate in evidence law scholarship. Courts view statistical evidence with suspicion, treating it as inadmissible even when it is probabilistically equivalent to individuating evidence, such as eyewitness testimony. Many evidence law scholars share this attitude. Yet, it has proved remarkably difficult either to justify the suspicion towards statistical evidence or to debunk it. The aim of our article is to dispel some of the confusion.
Our article connects the discussion of statistical evidence to broader epistemological discussions of similar phenomena: It highlights Sensitivity– namely, the requirement that a belief be counterfactually sensitive to the truth in a specific way – as a way of epistemically explaining the suspicion towards statistical evidence. After exposing the epistemic distinctions between statistical and individualized evidence, we turn to examine their implications for the legal arena: As we argue in the article, the requirement of Sensitivity cannot serve as a satisfactory vindication of the reluctance to rely on statistical evidence in court, because Sensitivity (and epistemology more generally) carry little legal value. Instead of the epistemological story, we offer an incentive-based story to uphold the suspicion towards statistical evidence in the legal arena. But, as we show in the article- the epistemological story and the incentive-based story are closely knit and interestingly related.
We conclude by drawing out the legal implications of the proposed theoretical framework: we demonstrate our theory's descriptive capacity by using it to explain the prevailing doctrine and the rules governing the admissibility of statistical evidence across various categories. We also display the theory's prescriptive potential by crafting new rules in its light. We show, for example, that the admissibility of statistical evidence should be contingent upon the type of offense or misconduct attributed to the defendant.
Talia Fisher is a Professor of Law at Tel Aviv University and a member of the Young Academia of the Israel Academy of Sciences and Humanities. She is spending the 2013-2014 academic year as a Lab Fellow and exchange scholar at the Edmond J. Safra Center for Ethics at Harvard University and as a visiting scholar at the Program on Negotiation at Harvard Law School. Fisher joined Tel Aviv University Law School in 2004, after receiving her LL.B., LL.M., and LL.D. from The Hebrew University of Jerusalem. Her primary research interests include the private supply of legal institutions and probabilistic applications in procedural law. She teaches Evidence Law, Evidence Law Theory, Commodification, and ADR. Her publications include: When Courts Determine Fees in a System with a Loser Pays Norm, with Ted Eisenberg and Issi Rosen Zvi, UCLA L. Rev. (forthcoming, 2013); Statistical Evidence, Sensitivity, and the Legal Value of Knowledge, with David Enoch and Levi Spectre, 40 Philosophy and Public Affairs 197-224 (2012); Israel’s Supreme Court Appellate Jurisdiction: An Empirical Study, with Theodore Eisenberg & Issi Rosen Zvi, 96 Cornell Law Review 693–726 (2011);Constitutionalism and the Criminal Law: Rethinking Criminal Trial Bifurcation 61 University of Toronto Law Journal 811-843 (2012).
