David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Ezio Di Nucci
Jack Alan Reynolds
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In a hypothetical case, Abraham, a wealthy Jewish businessman, is accused of a tax fraud but he denies the allegations. In his trial, the prosecution seeks to use statistical evidence which had been gathered and analysed with the utmost proficiency. According to these statistics, the probability of a person committing tax fraud is doubled if he is Jewish. The use of such evidence is obviously objectionable. The question is why this evidence should be excluded from court. This paper argues that it is very difficult for efficiency theories of law to provide a good justification for excluding this evidence. In contrast, corrective justice theories (e.g. Weinrib) are better placed to do so. If successful, this argument identifies an advantage of corrective justice theories over their efficiency competitors. It also identifies the limitations of the efficiency theories and highlights that they lead to some problematic consequences in evidence law, consequences which have so far been overlooked.
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