Burden Of Persuasion Research Articles

International Legality, the Use of Military Force, and Burdens of Persuasion: Self-Defense, the Initiation of Hostilities, and Impact of the Choice Between Two Evils on the Perception of International Legitimacy

International Legality, the Use of Military Force, and Burdens of Persuasion: Self-Defense, the Initiation of Hostilities, and Impact of the Choice Between Two Evils on the Perception of International Legitimacy

A comprehensive account of the burden of persuasion in abstract argumentation

AbstractIn this paper, we provide a formal framework for modeling the burden of persuasion in legal reasoning. The framework is based on abstract argumentation, a frequently studied method of non-monotonic reasoning, and can be applied to different argumentation semantics; it supports burdens of persuasion with arbitrary many levels, and allows for the placement of a burden of persuasion on any subset of an argumentation framework’s arguments. Our framework can be considered an extension of related works that raise questions on how burdens of persuasion should be handled in some conflict scenarios that can be modeled with abstract argumentation. An open source software implementation of the introduced formal notions is available as an extension of an argumentation reasoning library. A theoretical analysis shows that our approach can be generalized to a novel method for the preference-based selection of extensions from argumentation frameworks.

Contextualizing Relations Between Presumptions and Legal Fictions: An Analysis of the Chinese Civil Code

This research aims to achieve two goals: first and foremost, clarify the similarities and dissimilarities among statutory (legal) presumptions, judicial (factual) presumptions and legal fictions. The second is to provide a set of theoretical tools that can correctly distinguish two types of presumptions from legal fictions, so as to facilitate the accurate identification and application of those three by Chinese judges in their judicial practice. This study mainly adopts two research methods: legal theory analysis and law article analysis. The research results of this paper mainly are: first, compared with legal fictions, two types of statutory presumptions are more or less refutable. Their differences are as follows: on the one hand, the scope of refutation is different; on the other hand, the difficulty of refutation is different, too. Second, litigators are forbidden to refute the conclusive part of an applied legal fiction, but they can disprove its premise fact. By nature, that refutation is “a challenge against the lawfulness of that legal fiction’s usage”. Third, for related ultimate facts, the using of statutory presumptions will not lead to their reversed burden of persuasion. Fourth, when the principle of presumptive fault is applied, as for the issue of whether the defendant has subjective fault or not, the related burden of persuasion will be reversed to be assumed by the defendant. By comparison, in the usage of statutory presumptions, there will be no inversion of burden of persuasion. Fifth, direct denials, indirect denials and defenses can be used to rebut premise facts of the legal fiction, basic facts of two types of statutory presumptions, and presumptive facts of the refutable statutory presumptions. Sixth, when direct denials and indirect denials are launched, the evidence is the disproving evidence (Gegenbeweis). When the defenses are raised, the evidence is the proving evidence (Hauptbeweis). Seventh, the successful effect of discrediting basic facts of refutable statutory presumption: the using of that presumption lacks legitimacy, so the corresponding presumptive facts are untenable, too. Eighth, the successful effect of contradicting the presumptive facts of the refutable statutory presumption: while those presumptive facts are proved groundless, the related basic facts will be considered as confirmed continually. And finally, the successful effect of disproving basic facts of irrefutable statutory presumption: because it has been proved that the using of that presumption is lack of lawfulness, the related presumptive facts can not be sustained, either. By making use of those aforesaid study results, 28 statutory presumptions and 30 legal fictions are identified in the Civil Code of China.

Twenty Fregean Ways to Quantify Over Frege's Senses

This paper continues my discussion with Michael Dummett on Frege’s senses, published in The Philosophy of Michael Dummett and further developed in Diametros. In his reply to my original paper, Dummett came to agree with me that senses are neither objects nor functions, since they have a categorially different kind of linguistico-metaphysical function to perform. He then asks how we might quantify over senses, if they are neither objects nor functions. He discusses two main options, and finds one unviable and the other “very un-Fregean.” I then offer a Fregean or neo-Fregean option in my rejoinder. And I still hold that this way out will do the job, or is at least plausible enough that the burden of persuasion is on those who disagree. But I hope to show in this paper that on a more complete examination of Frege, there are at least twenty Fregean or neo-Fregean ways out, with the one I proposed being option (17).

Defeasibility and Burdens of Proof

Defeasibility is often related to burdens of proof. By meeting its burdens of proof, a party may defeat a claim by the other party that would have been supported had the burdens not been met. To provide an adequate logical account of burdens of proofs, two notions need to be distinguished: the burden of production and the burden of persuasion. First the burden of production is introduced, showing how it contributes to defining the logical structure of legal norms. Then the burden of persuasion is introduced, and its function is examined in adjudicating conflicts between arguments and in determining the dialectical status of such arguments and of the claims they support.

The Role of Consumer Uncertainty in Trademark Law: An Experimental and Theoretical Investigation

Nearly every important issue in trademark litigation turns on the question of what consumers in the marketplace subjectively believe to be true. To address this question, litigants frequently present consumer survey evidence, which can play a decisive role in driving the outcomes of disputes. But trademark survey evidence has proven to be highly controversial, not least because it is notoriously prone to expert manipulation. In this Article, we identify and present empirical evidence of a related, but more fundamental problem with trademark survey evidence: while all the leading survey formats in trademark law test for whether consumers hold a particular belief, they do not test for the strength or the varying degrees of certainty with which consumers hold that belief. In short, by treating the question of consumer beliefs as essentially binary, the formats do not test for belief strength. Yet as the social science literature has long recognized, the strength with which consumers hold particular beliefs shapes their behavior in the marketplace, and thus it should also shape, we believe, how trademark disputes play out in the courtroom. Through a series of experiments using the three leading trademark survey formats (the so-called Teflon, Eveready, and Squirt formats), we show the remarkable degree to which these formats as conventionally designed overlook—or suppress—crucial information about consumer uncertainty. We further demonstrate how a low-cost, easily-administered, and relatively simple modification in these formats can reveal that information. We discuss both the practical and theoretical implications of our findings. As a practical matter, trademark survey evidence that shows only weakly-held beliefs (or that does not even test for belief strength) should not, without more, satisfy a litigant’s burden of persuasion on the issue addressed by the survey. Furthermore, in line with courts’ growing efforts in intellectual property cases to tailor injunctive relief, survey evidence showing only weakly-held mistaken beliefs may provide courts with the opportunity to fashion more limited forms of relief short of an outright injunction. As a theoretical matter, we explain how trademark survey formats that reveal the true extent of consumer uncertainty in the marketplace may finally force trademark law and policy to confront normative questions it has long left unanswered going to exactly what kind of harm trademark law is meant to forestall.

Burdens of Proof

This chapter provides a brief introduction to the scholarly conversation concerning burdens of persuasion. An adequate account of burdens must first explain what case-related facts the burden draws upon to produce outcomes. I review a variety of answers to this question, including probability threshold, likelihood ratio, belief function, weight-of-evidence, explanatory, and story-based approaches. I then identify several key questions that theories must answer with respect to inputs and show that the best answer on any given question must depend on whether the theory is advanced as a psychological, doctrinal, or normative account. The remainder of the chapter considers varying methods of transforming these inputs into case outcomes, including fixed thresholds, variable thresholds, multi-stepped, and continuous approaches. With respect to these choices, the problem of describing current practices is much easier, but the normative debates are harder to resolve.

Retributivist Reform of Collateral Consequences

This Article applies retributivist principles to discussions about collateral consequences reform. Retributivist ideas relating to agency and responsibility, proportionality, personal and communal restoration, and the obligations and duties of the state, as well as the broader community, suggest suspicion of an expansive collateral consequences regime. A retributivist assessment, cognizant of realities within the criminal system, reveals that many are overly punitive and disruptive of social order. Legislatures that prioritize retribution as a justification for and constraint on punishment should think clearly about whether existing collateral consequences result in disproportionate suffering and, if so, reconsider them. This includes the outsourcing of punishment to private actors. Committed retributivist decision-makers within the system, such as line prosecutors, should consider how to approach the imposition of collateral consequences when acting during various phases of a prosecution. Finally, retributivist constraints can inform whether the maintenance of criminal records by the state is justified, and for how long, as well as the scope of second-chance remedies like expungement. These limitations could allow for robust procedural protections for petitioners for relief, shifting the burden of persuasion to the state. In short, retributive principles can be a useful tool for reform, helping to restore to ex-offenders what they deserve.

Burden of Persuasion in Argumentation

This paper provides a formal model for the burden of persuasion in dialogues, and in particular, in legal proceedings. The model shows how an allocation of the burden of persuasion may induce single outcomes in dialectical contexts in which, without such an allocation, the status of conflicting arguments would remain undecided. Our approach is based on a two-stage labelling. The first-stage labelling determines what arguments are accepted, rejected or undecided, regardless of the allocation of burden. The second-stage labelling revises the dialectical status of first-stage undecided arguments, according to burdens of persuasion. The labelling is finally extended in such a way as to obtain a complete labelling. Our model combines two ideas that have emerged in the debate on the burden of persuasion: the idea that the burden of persuasion determines the solution of conflicts between arguments, and the idea that its satisfaction depends on the dialectical status of the arguments concerned. Our approach also addresses inversions of the burden of persuasion, namely, cases in which the burden of persuasion over an argument does not extend to its subarguments.

Tendencias actuales del derecho probatorio civil de los Estados Unidos

This article discusses current trends in civil probatory law in the United States based on its fundamental concepts such as burden of proof, presumptions, burden of production, burden of persuasion, reversal of burden of proof, and discovery of evidence, as institutions that are part of so-called American exceptionalism. All of the above is analyzed taking into account some characteristics of common law legal tradition, such as juries and standards of proof. These institutions are in contrast to the institutions of civil probatory law in civil law countries.

Burden of Proof in Tax Cases: Valuation and Ranges - an Update

In this Article, the author discusses the difficulty in many valuation cases of determining a definite valuation point by the required degree of persuasion (more likely than not in most civil cases). This point was made cogently in Cede & Co. v. Technicolor, Inc., a frequently cited opinion by the Delaware Court of Chancery, a forum for significant litigation involving corporate valuations: [I]t is one of the conceits of our law that we purport to declare something as elusive as the fair value of an entity on a given date. . . . [V]aluation decisions are impossible to make with anything approaching complete confidence. Valuing an entity is a difficult intellectual exercise, especially when business and financial experts are able to organize data in support of wildly divergent valuations for the same entity. For a judge who is not an expert in corporate finance, one can do little more than try to detect gross distortions in the experts’ opinions. This effort should, therefore, not be understood, as a matter of intellectual honesty, as resulting in the fair value of a corporation on a given date. The value of a corporation is not a point on a line, but a range of reasonable values, and the judge’s task is to assign one particular value within this range as the most reasonable value in light of all the relevant evidence and based on considerations of fairness. Corporate valuations for estate tax are just one context of tax litigation, but there are many other contexts. A prominent example for some time now has been transfer pricing. Sometimes when ranges are identified, arbitrary conventions (such as the midpoint in trades as in the case of publicly-traded stock) can be used to determine the value in tax litigation. But when there is no such convention that should be applied, the burden of persuasion can resolve the valuation issue by identifying the range. The party bearing the burden of persuasion (or risk of non-persuasion) then has persuaded only as to the end of the range that does not favor that party; the value, based on persuasion, is determined accordingly. The party bearing the burden of persuasion in tax cases is usually the taxpayer. In this Article, the author discusses interesting features of the burden and how, at least before the Tax Court, the burden of persuasion might shift to the Service under the Supreme Court’s decision in Helvering v. Taylor, which the author urges is often misunderstood. Another benefit of identifying a range of values is that, if it is determined on appeal that the trier of fact misapplied the burden of persuasion but did identify the range, the court of appeals can resolve the case by picking the other end of the range (unless a successful attack is made on the trial court’s choice for the ends of the range).

The Burden of Proof for Invoking the Public Interest Exception to ITC Exclusion Orders Under Section 337

The U.S. International Trade Commission’s enforcement of Section 337 of the Tariff Act protects domestic industries from the consequences of unfair competitive acts in the importation of goods into the U.S. that infringe on U.S. IP rights. The power of the Commission is limited primarily to issuing exclusion orders against infringing imports into the U.S. Because upon finding of a violation, an exclusion order is presumed to serve the public interest, the alleged infringing importer (respondent) must bear the burden of proving by the preponderance of evidence that statutorily-specified public interest factors justify an exception from issuance of the order. This paper analyzes the statute, regulations, case law, and administrative precedents that allocate the burden of persuasion for these factors onto the respondent. This burden of proof is substantive, including the burden of showing patent holder’s market power, higher prices, lack of alternatives to consumers, infeasibility of design-around the patent holder’s claims, national security imperatives, showing essentiality for standard implementation of patent claims subject to Fair, Reasonable and Non-Discriminatory commitments, and showing that refusal to license such essential patent claims caused a patent “holdup.” It is shown that these exceptions are rare and narrowly applied. Through more than a thousand investigations, the Commission applied the exception only four times.

An Unappreciated Constraint on the President's Pardon Power

Most commentators assume that, except for the few textual limitations mentioned in the U.S. Constitution, the President’s pardon power is effectively unlimited. This paper suggests that this common view is mistaken in at least one unexpected way: Presidential pardons must satisfy a specificity requirement. That is, to be valid, the pardon must list the specific crimes insulated from criminal liability. This claim bears a significant burden of persuasion, since it runs so counter to accepted opinion. Nonetheless, that burden can be met. The paper’s argument rests on an originalist understanding of the Constitution’s text, an approach that leaves little doubt that a specificity requirement is an implicit limitation on the President’s pardon power. It also demonstrates that the main objections to the argument – that the requirement runs contrary to the Constitutional text or historical practice – are misguided and unpersuasive. Of course, even if a specificity requirement exists, one may wonder about its significance. After all, the requirement does not prevent a President from issuing a pardon to any person or for any crime. Nonetheless, as the paper explains, a specificity requirement may prove more powerful than it first appears. Most importantly, it both limits the scope and raises the cost of issuing pardons for criminal violations, including violations of the electoral process. In so doing, the specificity requirement serves as an unexpected ally in the fight for political accountability and in defense of the rule of law.

America's Aristocracy

In Taking the Constitution Away from the Courts,' Professor Mark Tushnet takes on America's favorite branch. Perhaps the brightest star in a movement that seems to have fizzled out,2 Tushnet is particularly well suited to play the lone child who bares to the bewildered populace the truth about their judicial emperors. After all, the Left has never been reluctant to speak (or shout) the truth to power. Tushnet requests that we reorient ourselves toward a constitutional law, in which the people and their elected representatives vindicate the Constitution and the courts have absolutely no enforcement role. To relegate the judiciary to the status of constitutional ciphers, Tushnet advocates a constitutional amendment that would provide that [t]he provisions of this Constitution shall not be cognizable by any court. With respect to his thin constitutional project, Tushnet would replace our already compact and vague Constitution with something even more nebulous and unhelpful. We may be attached to justice, the general welfare, and liberty, but that does not mean that we share many meaningful commitments. A KKK member might claim that justice entails the eradication of all racial minorities. A Communist Party cadre would find the general welfare served by the abolition of private property. As should be obvious, Tushnet's thin Constitution can be made to mean absolutely anything in practice, which signifies that it actually constitutes nothing. Such an anorexic, yet cavernous, document would neither enjoy any obvious advantages nor attract any genuine allegiance. His populist constitutional project fares much better but still falls short. Tushnet does not carry his burden of persuasion when he argues that the courts should play absolutely no role in enforcing the Constitution. His strongest argument rests on his claim that the courts are largely inconsequential because they usually follow the election returns. But if the judiciary does not really matter, he must explain why we should bother abolishing judicial review. Indeed, if the judiciary follows the election returns, perhaps we already have an unintended populist constitutional law regime. Paradoxically, his arguments might dispel the misgivings that certain quarters have about judicial review. Notwithstanding all this, Tushnet's radicalism has highlighted a fatal flaw in a system purportedly based on the principle that the people rule: America has an elitist constitutional law in which only the judgments, opinions, and perspectives of the courts matter. While we could make our constitutional law more responsive to the people by eliminating judicial review, we would thereby eliminate the benefits that flow from having an institution that specializes in interpretation and from having an independent check on the other branches. Perhaps the better means of ushering in a populist constitutional law would be to abolish life tenure for federal judges. If we eliminated life tenure, judges would no longer seem infallible and we would no longer place them on a pedestal. Nor would they have complete freedom to pursue their own agendas. Instead, we could hold them accountable for their biases, failings, and errors. Most importantly, eliminating life tenure would serve as a concrete sign that judges, like all public servants, serve at the pleasure of the people.

Can there be a burden of the best explanation?

In this article I address a foundational question in evidence law: how should judges and jurors reason with evidence? According to a widely accepted approach, legal fact-finding should involve a determination of whether each cause of action is proven to a specific probability. In most civil cases, the party carrying the burden of persuasion is said to need to persuade triers that the facts she needs to prevail are “more likely than not” true. The problem is that this approach is both a descriptively and normatively inadequate account of reasoning with evidence in law. It does not offer a plausible picture of how people in general, and legal fact-finders in particular, reason with evidence. And it turns out that if we try to do what the approach tells us, we end up with absurd results. Faced with these difficulties, a group of evidence scholars has proposed an alternative. According to them, legal fact-finding should involve a determination of which hypothesis best explains the admitted evidence, rather than whether each cause of action is proven to a specific probability. My main contributions in this article are twofold. First, I elaborate on the many descriptive, normative and explanatory considerations in support of an explanation-based approach to standards. Second, I offer novel replies to pressing objections against that same approach.

Innovation Competition, Unilateral Effects and Merger Control Policy

This paper looks at whether the standard unilateral effects model can be applied to non-price competition parameters such as innovation. This question arises because competition authorities are intervening in horizontal mergers that are found to give rise to a “significant impediment to effective innovation competition” (“SIEIC”) as a result of a reduction in post-merger R&D efforts (including lower expenditure). SIEIC is distinct from the mainstream unilateral effects theory of harm that predicts a “significant impediment to effective competition” (“SIEC”) as a result of increased prices. Most recently, the European Commission (“Commission”) used its powers under the EU Merger Regulation (“EUMR”) to impose remedies in the Dow/DuPont merger. This was in part because of concerns that that the transaction “would be likely to significantly impede effective competition as regards innovation both in innovation spaces where the Parties’ lines of research and early pipeline products overlap and overall in innovation in the crop protection industry.” At the heart of the development of SIEIC analysis lies a fundamental question of competition theory: under what conditions can variations of existing economic models be applied in merger cases? This paper is divided into three sections. In Section I, the SIEIC theory of harm is described and put into perspective against past competition policy on innovation competition. Section I concludes that SIEIC constitutes a small but significant change in merger policy. In Section II, the economics of SIEIC are discussed. In particular, it will be seen that SIEIC is an application of the standard unilateral effects analysis where the focus is shifted from price to innovation effects. Section II demonstrates that this variant of the model can only deliver sound and robust empirical predictions if three critical innovation-specific questions are addressed. Section III discusses the economic methodology of merger control policy. This Section shows that agencies should remain free to rely on new or adapted pre-existing economic models in merger control reviews, provided they are able to discharge the “burden of persuasion”. With this, the paper hopes to contribute to the ongoing development of optimal merger control policy in innovative and R&D-driven markets.

Retaliatory Discharge For Filing a Workers' Compensation Claim in Wyoming

Wyoming workers who file workers’ compensation claims and are subsequently retaliated against may bring an action for retaliatory discharge because such an action is neither precluded by the exclusive remedy rule nor by the employment “at-will” doctrine. As a practical matter, however, such claims still face two unjust barricades: 1) the causation standard is the “substantial and motivating” factor test; 2) the burden shifting mechanism forces employees to prove a negative, and to do so persuasively. While this test is better than the test the United States Supreme Court adopted in Title VII retaliation cases, it should be remodeled after the Wright Line test of labor law. The Wright Line test only requires a motivating factor under the prima facie prong, and it also shifts the burden of persuasion to the employer once the prima facie prong is satisfied. Wyoming should adopt this test because once an employee shows any illegal motive on the employer’s part, the onus should be on the employer to show innocent motive. Further, a strong retaliation test will reinforce the system of workers’ compensation and protect the underlying constitutional right to damages upon an injury. Such an alteration in Wyoming’s test would not run afoul of Wyoming’s intent to strictly construe its workers’ compensation statute, as other states that also strictly construe their workers’ compensation statutes have forceful retaliation jurisprudence. Accordingly, it would be suitable for Wyoming to implement forceful retaliation laws that would protect that right. Additionally, Wyoming looked to Oklahoma, a liberal construction state, when fashioning its retaliation jurisprudence. This shows that Wyoming strongly opposes employer destabilization of the workers’ compensation system through unjust firings.

An Enquiry Meet for Professional Regulation: Lessons from PolyGram

After North Carolina State Board of Dental Examiners v. FTC, it is clear that the antitrust laws have an important role to play in reforming occupational licensing, but the exact framework remains an open question. Under a rule of reason analysis, health and safety rationales are off limits. But if state board cannot draw on these types of consumer protection arguments to defend their actions, as a practical matter, can a state board ever win an antitrust suit? Some have suggested applying a modified rule of reason to incorporate non-competition justifications. But these approaches threaten to summon the ghost of Lochner and raise problems of subjectivity and predictability that are sure to arise when courts and enforcers are called on to weigh losses in competition against purported gains across other dimensions. Rather than expanding the rule of reason to accommodate non-competition concerns, there is a better path that draws from PolyGram Holding, Inc. v. FTC. Given the vast empirical literature pointing to the harms from state regulation of professions, board actions that restrain competition should be treated as inherently suspect as a matter of law. As such, in an antitrust challenge, the burden of persuasion immediately should fall to the board to provide an efficiency rationale that is both cognizable and plausible. If the board cannot muster a story involving cognizable benefits to competition to justify the restraint, it should be condemned as per se illegal, and the authorizing law subject to preemption. If the board is able to offer a justification that sounds in competition, it still must provide a plausible reason why either the restraint offers procompetitive benefits or does not harm competition. If they cannot meet this burden, the restraint should be condemned summarily. If they do, courts will conduct a full-blown rule of reason in inquiry.

An Enquiry Meet for the Case: Decision Theory, Presumptions, and Evidentiary Burdens in Formulating Antitrust Legal Standards

Presumptions have an important role in antitrust jurisprudence. This article suggests that a careful formulation of the relevant presumptions and associated evidentiary rebuttal burdens can provide the “enquiry meet for the case” across a large array of narrow categories of conduct confronted in antitrust to create a type of “meta” rule of reason. The article begins this project by using decision theory to analyze the types and properties of antitrust presumptions and evidentiary rebuttal burdens and the relationship between them. Depending on the category of conduct and market structure conditions, antitrust presumptions lie along a continuum from conclusive (irrebuttable) anticompetitive, to rebuttable anticompetitive, to competitively neutral, and on to rebuttable procompetitive and conclusive (irrebuttable) procompetitive presumptions. A key source of these presumptions is the likely competitive effects inferred from market conditions. Other sources are policy-based - deterrence policy concerns and overarching policies involving the goals and premises of antitrust jurisprudence. Rebuttal evidence can either undermine the facts on which the presumptions are based or can provide other evidence to offset the competitive effects likely implied by the presumption. The evidentiary burden to rebut a presumption depends on the strength of the presumption and the availability and reliability of further case-specific evidence. These twin determinants can be combined and understood through the lens of Bayesian decision theory to explain how “the quality of proof required should vary with the circumstances.” The stronger the presumption and less reliable the case-specific evidence in signaling whether the conduct is anticompetitive versus procompetitive, the more difficult it will be for the disfavored party to satisfy the evidentiary burden to rebut the presumption. The evidentiary rebuttal burden generally is a burden of production, but also can involve the burden of persuasion, as with the original Philadelphia National Bank structural presumption, or typical procompetitive presumptions. If a presumption is rebutted with sufficient offsetting evidence to avoid an initial judgment, the presumption generally continues to carry some weakened weight in the post-rebuttal phase of the decision process. That is, a thumb remains on the scale. However, if the presumption is undermined, it is discredited and it carries no weight in the post-rebuttal decision process. The article uses this methodology to analyze various antitrust presumptions. It also analyzes the, burden-shifting rule of reason and suggests that the elements should not be rigidly sequenced in the decision process. The article also begins the project of reviewing, revising and refining existing antitrust presumptions with proposed revisions and refinements in a number of areas. The article invites other commentators to join the project by criticizing these proposals and suggesting others. These presumptions then could be applied by appellate courts and relied upon by lower court, litigants and business planners.

The Declining Utility of Analyzing Burdens of Persuasion

This brief paper presented at a celebration of the career of Michael Risinger, briefly reviews why the relative plausibility theory is to date the best explanation of juridical proof and the limits of its chief competitor, a probabilistic explanation. It is true that the legal system is structured to generate the most probable outcome as the verdict in cases; nonetheless, the conclusion of the most plausible (and thus most probable) outcome is achieved through plausible reasoning, not probabilistic reasoning, and virtually the entire procedural context supports, indeed forces the parties to pursue, this approach. A recent competitor to relative plausibility has been advanced in the form of fuzzy set theory that purportedly dissolves the “conjunction paradox,” which is taken as evidence of the inadequacies of the relative plausibility theory. This paper demonstrates that the purported intimate connection between the conjunction paradox and relative plausibility does not exist. In part this is because the so-called “conjunction paradox” is a feature of the world rather than our thinking about the world, and any explanation of juridical proof must explain this feature of the world to have any chance of success. The apparent resolution of this paradox by fuzzy theorizing thus either must rest on the view that how we think about the world can change how the world behaves, which is unlikely, or on mistakes in the application of fuzzy sets and fuzzy logic. The latter is shown to be the case. Among other difficulties, the argument that fuzzy theorizing eliminates the conjunction paradox is shown to make at least two fundamental mistakes of mathematical logic. First, it confuses a set theoretic definition of the intersection of sets with a probabilistic measure of the probability of events occurring. Second, it confuses the elements of sets with the sets themselves. Fuzzy sets and logic are thus eliminated as competitors to the relative plausibility theory.