The quantification of legal standards is an important and interesting topic that has garnered much attention in various contexts. We know that the preponderance of the evidence standard requires greater than 50% certainty, but most other legal standards, including beyond a reasonable doubt, probable cause, and reasonable suspicion, remain undefined numerically. The debate remains active between what I’ll call “fuzzy types,” who distrust the incorporation of math (with its potential false sense of precision) into the law, and “hard types,” who seek to add increased precision and clarity using numbers.
My first Concurring Opinions blog, posted in April, and the discussions that followed inspired a paper on quantifying probable cause. Getting Beyond Intuition in the Probable Cause Inquiry seeks to assign a numerical value to probable cause in situations where quantifiable evidence is already a critical factor in the probable cause inquiry. This would occur where, for example, an alert by a drug sniffing dog is the sole evidence offered to satisfy probable cause. The paper uses a hard-type approach, but largely in situations where the valid concerns of the fuzzy types are minimized. I have posted a draft of the paper at SSRN, and I will be submitting the paper during the August submission season.
I will post more blogs in July, but I’d like to thank everyone who commented on my blog posts. The discussions have helped shape this paper. I am a huge champion of legal blogs, both because of their ability to facilitate exchanges of more accessible length than law review articles, and because of their ultimate benefit to the content of law review articles.