Civil liability and the 50%+ standard of proof

Abstract

The standard of proof applied in civil trials is the preponderance of evidence, often said to be met when a proposition is shown to be more than 50% likely to be true. A number of theorists have argued that this 50%+ standard is too weak—there are circumstances in which a court should find that the defendant is not liable, even though the evidence presented makes it more than 50% likely that the plaintiff’s claim is true. In this paper, I will recapitulate the familiar arguments for this thesis, before defending a more radical one: The 50%+ standard is also too strong—there are circumstances in which a court should find that a defendant is liable, even though the evidence presented makes it less than 50% likely that the plaintiff’s claim is true. I will argue that the latter thesis follows naturally from the former once we accept that the parties in a civil trial are to be treated equally. I will conclude by sketching an alternative interpretation of the civil standard of proof