Abstract

The tension between rule and judgment is well known with respect to the meaning of substantive legal commands. The same conflict is present in fact finding. The law penetrates to virtually all aspects of human affairs; irtually any interaction can generate a legal conflict. Accurate fact finding about such disputes is a necessary condition for the appropriate application of substantive legal commands. Without accuracy in fact finding, the law is unpredictable, and thus individuals cannot efficiently accommodate their affairs to its commands. The need for accuracy and predictability in legal fact finding has generated a search for formal tools to apply to the task. Among the tools that have been examined are Bayes' Theorem and expected utility theory (Bayesian or statistical decision theory). These tools do not map well onto trials, which in turn has generated an examination of alternative approaches, in particular the story model and the relative plausibility theory. This paper discusses these issues in turn. It elaborates the basic structure of trials in the American tradition; examines the uneasy relationship between trials and such formalisms as Bayes' Theorem and expected utility theory; and introduces the relative plausibility theory as an explanation of the nature of juridical proof