Liability and Individualized Evidence

Abstract

Cases like Smith v. Rapid Transit, Inc. I present a problem to students of tort law. Here is a typical hypothetical case-I will call it Smith v. Red Cab-which presents the problem more cleanly than the actual case does. Mrs. Smith was driving home late one night. A taxi came towards her, weaving wildly from side to side across the road. She had to swerve to avoid it; her swerve took her into a parked car; in the crash, she suffered two broken legs. Mrs. Smith therefore sued Red Cab Company. Her evidence is as follows: she could see that it was a cab which caused her accident by weaving wildly across the road, and there are only two cab companies in town, Red Cab (all of whose cabs are red) and Green Cab (all of whose cabs are green), and of the cabs in town that night, six out of ten were operated by Red Cab. Why is that the only evidence she can produce against Red Cab? She says that although she could see that it was a cab which came at her, she could not see its color, and as it was late, there were no other witnesses to the accident-other than the driver himself, of course, but he has not come forward to confess. If we believe Mrs. Smith's story, and are aware of no further facts that bear on the case, then we shall think it .6 probable that her accident was caused by a cab operated by Red Cab. I think it pays to spell this reasoning out; what follows is one way of doing so. If we believe Mrs. Smith's story, then we believe that a cab, indeed exactly one cab, caused the accident, so that there is such a thing as the cab which caused the accident; and we believe that it was a cab in town that night. Thus we believe: (1) The cab which caused the accident was a cab in town that night. If we believe Mrs. Smith's story, we also believe: (2) six out of ten of the cabs in town that night were operated by Red Cab. Relative to the facts reported by (1) and (2), it is true that: (3) The probability that the cab which caused the accident was operated by Red Cab is .6.

Truth, knowledge, and the standard of proof in criminal law

“…In her discussion of the puzzle of the proper role of statistical evidence in the law, Thomson (1986) notes something that seems to be operative in the passage just quoted, which is that the purely statistical evidence seems to be not properly about or connected to the defendant. What we desire, she suggests, is evidence that is causally connected to the defendant in question.…”

Belief, credence, and norms

“…The two bus companies in the area, the Green Bus Company and the Yellow Bus Company, each operate 50 percent of the 11 Central discussions of this case and others involving naked statistical evidence appear Nesson (1985); Cohen (1977); Thomson (1986); Colyvan, Regan, and Ferson (2001);and Redmayne (2008). 12 Presentation based on Schauer, Chapter 3.…”

“…Since the argument in this section only hinges on what we ought to believe in these cases, the complexities of the actual legal system are unimportant to the discussion here. 16 See also Thomson (1986), who argues that in the Blue Bus case, we don't know whether the blue bus hit the woman. 17 I thank the students in Robert Audi's graduate seminar at Notre Dame for suggesting this case.…”

“…18 Furthermore, in the epistemological literature, Thomson (1986), Kaplan (1996, and Nelkin (2000) have each proposed to solve the Lottery Paradox by claiming that purely statistical evidence should not produce belief. 19 There is disagreement about why exactly these cases don't give rise to a verdict or to rational belief.…”

Regulation by generalization

“…Criminal law theorists like the philosopher Douglas Husak believe it to be profoundly unjust to find people guilty of a crime simply because they have done something that indicates wrongful conduct, rather than finding them guilty under the suitable standard of proof of having actually done something wrong (Husak 1998, 2004). Relatedly, the philosopher Judith Jarvis Thomson has gone beyond the criminal law to object, on moral grounds, to targeting people for regulation or liability on the basis of the category into which they or their conduct fall, as opposed to requiring a more particularized indication of regulable conduct (Thomson 1986). Even more recently, criminal law theorists like Bernard Harcourt argue not only against racial profiling, but also against all forms of actuarially based sanctions (Harcourt 2006).…”