Statistical evidence and individual litigants

Abstract

Humpty, an enthusiastic football fan, is sued for gate-crashing a local football match. He was seen by Alice sneaking through the fence. Alice's visual identification ability is tested and shown to be accurate in nine times out of ten. This case seems straightforward and finding Humpty liable seems intuitively right. In another football match, Hatter, another enthusiastic football fan, is also sued for gate-crashing. This time, the only evidence available is that just one hundred tickets had been sold whilst yet a thousand spectators were counted. Hatter being sued for gate-crashing is based on the fact that nine out of ten spectators gate-crashed. Surprisingly, this case is relatively straightforward too: finding Hatter liable based on this statistical evidence seems intuitively wrong. It is surprising because in both cases, at least prima facie, the risk of error is similar. In both cases, there is a one in ten chance that finding liability would be mistaken. A common intuitive response to the gate-crasher paradox is that the statistical evidence does not prove anything about the particular individual. Whilst this explanation may have an intuitive appeal, it merely serves as a starting point because it immediately begs the question as to why the statistical evidence fails. Fortunately, some writers have tried to develop this intuition into a more detailed and elucidated account. In particular, Zuckerman has argued that imposing liability based on such statistical evidence is a form of corporate liability, which contradicts the commitment of the legal system to an individualised justice. Wasserman, on the other hand, has suggested that using statistical evidence fails to respect the individuality and autonomy of the litigant because it treats the individual as a predetermined mechanism rather than an autonomous individual who is capable of determining his own conduct. Whilst each account suggests a slightly different answer, both put the individual at the centre of their explanations (either through the individualised justice or the individual's autonomy). This paper critically examines whether these individuality accounts could serve as an explanation for this paradox and a justification for restricting the usage of statistical evidence in some circumstances. I will argue that, whilst the individuality accounts have promising potential to provide such explanation and justification, they also suffer from several substantial deficiencies that need to be overcome before this potential is realised. This paper therefore lays the requirements and perhaps the foundations for a comprehensive answer.

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2009-01-28

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Amit Pundik
Tel Aviv University

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