What is relative plausibility?

Abstract

Allen and Pardo’s explanation of Relative Plausibility as a theory of evidence and proof in litigation is ambiguous and underspecified. Their account suggests at least three different interpretations of what they mean. They might be advocating “anti-halfism,” which tracks the “conventional account” but merely rejects >0.5 as the proper standard of proof. Or they might be advocating “probabilistic holism,” in which trial decision-makers apply probability to whole claims but not elements – in which case it remains to be explained how such an approach is internally coherent. Or they might be endorsing “total anti-probabilism,” in which “plausibility” obeys rules and axioms different from those of probability – rules and axioms that Allen and Pardo have yet to identify. To date, Allen and Pardo have side-stepped criticisms by shifting from one interpretation to another, strategically. Aside from presenting a theory too formless to determine how well it fits actual jury behavior, Allen and Pardo have not presented any robust empirical observations about how juries actually decide cases (despite their claims to do so). Before we can really assess whether Relative Plausibility is a new paradigm for understanding the structure of evidence and proof in litigation, Allen and Pardo must tell us much more about what it actually is.