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Presumptions and burdens of proof : an anthology of argumentation and the law
In the last fifty years, the study of argumentation has become one of the most exciting intellectual crossroads in the modern academy. Two of the key concepts of argumentation theory are presumptions and burdens of proof. Their functions have been explicitly recognized in legal theory since the Middle Ages, but their pervasive presence in all forms of argumentation and in inquiries beyond the law - including politics, science, religion, philosophy, and interpersonal communication - has been the object of study since the nineteenth century. However, the documents and essays central to any discussion of presumptions and burdens of proof as devices of argumentation are scattered across a variety of remote sources in rhetoric, law, and philosophy. This book brings together for the first time key texts relating to the history of the theory of presumptions along with contemporary studies that identify and give insight into the issues facing students and scholars today. This volume's first half contains historical sources and begins with excerpts from Aristotle's Topics and goes on to include the Locus classicus chapter from Bishop Whately's preeminent Elements of Rhetoric as well as later reactions to Whately's views. The second half of the collection contains contemporary essays by contributors from the fields of law, philosophy, rhetoric, and argumentation and communication theory. These essays explore contemporary understandings of presumptions and burdens of proof and their role in numerous contexts today.
Book
Proving Discriminatory Violence at the European Court of Human Rights
In Proving Discriminatory Violence at the European Court of Human Rights Jasmina Mačkić explores the engagement of a fundamental European institution with the phenomenon of discriminatory violence, namely, the European Court of Human Rights.
eBook
Best Evidence: The Role of Information in Domestic Judicial Enforcement of International Human Rights Agreements
Independent domestic courts play important roles in enforcing international human rights agreements, thereby providing a mechanism by which international institutions can affect government policy. Yet this enforcement power is constrained not only by independence but also by the courts' ability to overcome information problems. Domestic courts' enforcement power depends on information in two ways: the costs of producing legally admissible evidence of abuses and the applicable legal standards of proof. When countries ratify international agreements, judicial enforcement can improve government practices when evidence-production costs and standards of proof are low, but not otherwise. With respect to personal integrity rights violations, evidence is especially difficult to obtain, and standards of proof are high, meaning that the courts will not be able to constrain government practices. By contrast, evidence-production costs and standards of proof are lower for other civil rights violations, so courts will be able to prosecute offenders and bring governments into line with their international commitments. Consistent with this theory, I find that commitments to the International Covenant on Civil and Political Rights (ICCPR) have significantly improved governments' respect for the freedoms of speech, association, assembly, and religion. With respect to personal integrity rights, however, I find that commitments to the ICCPR have not improved government practices.
Journal Article
The Development of the Criminal Law of Evidence in the Netherlands, France and Germany between 1750 and 1870
This book describes and explains how the so-called system of legal proofs, which consisted of a strict set of evidentiary rules, was replaced with the free evaluation of the evidence in France, Germany and the Netherlands between 1750 and 1870.
eBook
Administrative Burden: Learning, Psychological, and Compliance Costs in Citizen-State Interactions
This article offers two theoretical contributions. First, we develop the concept of administrative burden as an important variable in understanding how citizens experience the state. Administrative burden is conceptualized as a function of learning, psychological, and compliance costs that citizens experience in their interactions with government. Second, we argue that administrative burden is a venue of politics, that is, the level of administrative burden placed on an individual, as well as the distribution of burden between the state and the individual, will often be a function of deliberate political choice rather than simply a product of historical accident or neglect. The opaque nature of administrative burdens may facilitate their use as forms of \"hidden politics,\" where significant policy changes occur without broad political consideration. We illustrate this argument via an analysis of the evolution of Medicaid policies in the state of Wisconsin. Across three Governorships, the level of burden evolved in ways consistent with the differing political philosophies of each Governor, with federal actors playing a secondary but important role in shaping burden in this intergovernmental program. We conclude by sketching a research agenda centered on administrative burden.
Journal Article
The Burden of Criminal Procedural Proof
The urgency of the article stated in the article is due to the need to revise traditional scientific views on certain peculiarities of criminal procedural evidence in connection with the expansion of the adversarial nature of domestic criminal proceedings. The purpose of the paper is to determine the essence of the category 'burden of proof and justify the necessity of introducing it into scientific and law enforcement circulation. The main approach to the study of this problem was to carry out a critical analysis of the norms of the current criminal procedural legislation that regulates the requirements regarding the burden of proof and the views expressed on their proper understanding and application. The publication expresses the view that the distinction between such legal categories as 'burden of proof and 'burden of proof is proposed, the definition of the concept of 'burden of proof is proposed and the rules for burden sharing between parties of criminal proceedings are analyzed. The material of the article represents both theoretical and practical value. They can be used for further research into the essence of the concept of 'burden of proof, as well as for proper understanding and enforcement of criminal procedural law enforcement activities.
Journal Article
Generalization of Dempster–Shafer theory: A complex mass function
Dempster–Shafer evidence theory has been widely used in various fields of applications, because of the flexibility and effectiveness in modeling uncertainties without prior information. However, the existing evidence theory is insufficient to consider the situations where it has no capability to express the fluctuations of data at a given phase of time during their execution, and the uncertainty and imprecision which are inevitably involved in the data occur concurrently with changes to the phase or periodicity of the data. In this paper, therefore, a generalized Dempster–Shafer evidence theory is proposed. To be specific, a mass function in the generalized Dempster–Shafer evidence theory is modeled by a complex number, called as a complex basic belief assignment, which has more powerful ability to express uncertain information. Based on that, a generalized Dempster’s combination rule is exploited. In contrast to the classical Dempster’s combination rule, the condition in terms of the conflict coefficient between the evidences [inline-graphic not available: see fulltext] is released in the generalized Dempster’s combination rule. Hence, it is more general and applicable than the classical Dempster’s combination rule. When the complex mass function is degenerated from complex numbers to real numbers, the generalized Dempster’s combination rule degenerates to the classical evidence theory under the condition that the conflict coefficient between the evidences [inline-graphic not available: see fulltext] is less than 1. In a word, this generalized Dempster–Shafer evidence theory provides a promising way to model and handle more uncertain information. Thanks to this advantage, an algorithm for decision-making is devised based on the generalized Dempster–Shafer evidence theory. Finally, an application in a medical diagnosis illustrates the efficiency and practicability of the proposed algorithm.
Journal Article
Burden of proof in a civil trial
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Loss Aversion, Omission Bias, and the Burden of Proof in Civil Litigation
The general standard of proof in civil litigation is preponderance of the evidence. To prevail, the plaintiff must establish the case with a probability exceeding .5. We argue that since litigants tend to take the status quo as the reference point, dismissal of a claim is likely to be perceived as denying the plaintiff gains, and acceptance of a claim is likely to be perceived as inflicting losses on the defendant. Loss aversion thus justifies placing the burden of proof on the plaintiff. Notwithstanding the formal rule, our experimental findings suggest that the actual standard of proof in civil litigation is most likely higher than 51 percent. This phenomenon is plausibly due to fact finders’ omission bias. To minimize the total costs of judicial errors, loss aversion calls for setting the standard of proof considerably higher than 51 percent. Conflicting considerations militate against this proposal, however.
Journal Article
THE COALESCENT STRUCTURE OF CONTINUOUS-TIME GALTON–WATSON TREES
Take a continuous-time Galton–Watson tree. If the system survives until a large time T, then choose k particles uniformly from those alive. What does the ancestral tree drawn out by these k particles look like? Some special cases are known but we give a more complete answer. We concentrate on near-critical cases where the mean number of offspring is 1 + μ/T for some μ ∈ ℝ, and show that a scaling limit exists as T → ∞. Viewed backwards in time, the resulting coalescent process is topologically equivalent to Kingman’s coalescent, but the times of coalescence have an interesting and highly nontrivial structure. The randomly fluctuating population size, as opposed to constant size populations where the Kingman coalescent more usually arises, have a pronounced effect on both the results and the method of proof required. We give explicit formulas for the distribution of the coalescent times, as well as a construction of the genealogical tree involving a mixture of independent and identically distributed random variables. In general subcritical and supercritical cases it is not possible to give such explicit formulas, but we highlight the special case of birth–death processes.
Journal Article