On the Degree of Confidence for Adverse Decisions

Frederick Schauer and Richard Zeckhauser

The Journal of Legal Studies, 1996, vol. 25, issue 1, 27-52

Abstract: In a criminal trial, the prosecution needs to prove its case beyond a reasonable doubt. When an individual is accused of wrongdoing outside the criminal process, as when teachers and politicians are charged with sexual harassment and employees are charged with financial improprieties, people often assume that a similarly stringent standard of proof applies. Yet this transfer from criminal law model to other settings is mistaken. When the value of freedom from incarceration is absent, and other values are present, probabilities of "guilt" less than "beyond a reasonable doubt," perhaps only a mere possibility, are often socially, statistically, and morally legitimate bases for adverse decisions. Relatedly, although sound reasons for the criminal law's refusal to cumulate multiple low-probability accusations exist, the reasons for such refusal are often inapt in other settings. Taking adverse decisions based on cumulating multiple low-probability charges is often justifiable both morally and mathematically. Copyright 1996 by the University of Chicago.

Date: 1996
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