Law

In this paper, I present a puzzle about how courts react to purely statistical evidence and my own tentative approach to solving it. The basic puzzle is that while there are a number of contexts in which statistical evidence is rejected as a foundation for liability, there are others such as toxic torts in which such evidence is thought to be sufficient. While a number of attempts have been made to explain why statistical evidence is unacceptable in a variety of contexts, significantly fewer have brought to light cases in which such evidence is commonplace. Through an examination of toxic torts, I show that it is untenable to claim that as a general matter, courts will not ground findings of liability in statistical evidence. I then put forward a more nuanced view, according to which findings of liability can be justified when grounded in direct—but not indirect—statistical evidence.

In this article, I present several arguments against requiring unanimous jury verdicts in civil trials. In addition, I provide a model of the functioning of juries that illustrates and supports my more abstract arguments. The specific overarching thesis I defend is a conditional one, namely, that if the context is such that a jury system is warranted at all, then the context is such that non-unanimous jury verdicts are warranted, at least in civil trials. Since criminal trials (and, in particular, those for serious crimes) involve a number of unique considerations, my primary focus in what follows will be civil trials. That said, much of my discussion will raise questions about the propriety of unanimity in criminal cases as well. In addition, in what follows, I focus on the justification for requiring unanimous jury verdicts for finding a defendant liable for damages, where anything less than unanimity results in a finding of no liability. This is line with most of the relevant literature on requiring unanimous jury verdicts.

Is it bad practice to use statistical evidence as the basis for a finding of guilt or liability? And if it is bad practice, why is it bad practice? This paper focuses on the incentivizing aspects of candidate legal systems in civil cases. Incentives clearly matter––a legal system which encouraged bad behavior could easily be problematic even if it reliably penalized those who ran afoul of the law and did not penalize those who did not. And the use of statistical evidence does have implications for incentives. One lesson to be drawn from our discussion is that philosophers should not be coming up with stories as to why it is generally bad to use statistical evidence as one’s primary basis for conviction.

Concern for corporate influence on democratic decisions has mostly focused on campaign funding and access to legislators. While these are certainly worrisome, corporations have another tool to influence decisions, which they are increasingly using. They can threaten to move their operations or cancel expansion plans in a municipality unless its public officials pass (or kill) certain policies. In one sense, this is business as usual. Companies have the right to decide where to operate, and it is important for officials to consider how policy will impact local businesses that provide jobs and tax revenue. On the other hand, companies can use these threats to get their way on any policy, whether or not it impacts them. How do we tell when this kind of corporate action is illegitimate? We argue that such actions are illegitimate when they violate democratic norms of reason-giving, which occurs when companies offer the public “created” rather than “natural” reasons for their proposed policy.

In certain cases, it is natural to think that two or more individuals have an equal claim to some indivisible good. To take an example put forward by Broome, before a game both competitors may have an equal claim to the first move or the more advantageous position on the field. Along similar lines, there are many cases in which individuals have an equal claim to avoid some indivisible harm. To use another example from Broome, each member of a platoon of soldiers might have an equal claim to avoid a dangerous mission that is necessary to save the entire group or to advance the war effort more generally. In cases such as these, we face significant pressure to allocate the good or harm using a procedure that gives each individual an equal chance of obtaining that to which she possesses an equal claim.

In this paper, I aim to accomplish three tasks. First, I introduce the notion of procedural chances. This notion of procedural chances is important, I argue, because when individuals have an equal claim to some good (or to avoid some harm), each ought to have an equal procedural chance to obtain that good (or avoid the harm). Second, I show that this notion of procedural chances provides us with a fresh and interesting perspective on debates about statistical lives and the ex ante pareto principle. Lastly, I make clear that, in contrast to my systematic and unified treatment of these two topics, the views of other prominent thinkers on this topic are at war with themselves.