The Limits of the Preponderance of the Evidence Standard: Justifiably Naked Statistical Evidence and Multiple Causation

The preponderance-of-the-evidence standard usually is understood to mean that the plaintiff must show that the probability that the defendant is in fact liable exceeds 1/2. Several commentators and at least one court have suggested that in some situations it may be preferable to make each defendant pay plaintiff's damages discounted by the probability that the defendant in question is in fact liable. This article analyzes these and other decision rules from the standpoint of statistical decision theory. It argues that in most cases involving only one potential defendant, the conventional interpretation of the preponderance standard is appropriate, but it notes an important exception. The article also considers cases involving many defendants, only one of whom could have caused the injury to plaintiff. It argues that ordinarily the single defendant most likely to have been responsible should be liable for all the damages, even when the probability associated with this defendant is less than 1/2. At the same time, it identifies certain multiple-defendant cases in which the rule that weights each defendant's damages by the probability of that defendant's liability should apply.     

A bad trip for health-related human rights: implications of Momcilovic v The Queen (2011) 85 ALJR 957

Momcilovic v The Queen (2011) 85 ALJR 957; [2011] HCA 34 arose from a prosecution for drug trafficking brought under the Drugs, Poisons and Controlled Substances Act 1981 (Vic). The Australian High Court held that the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter) validly conferred a power on the Victorian Supreme Court and Court of Appeal to interpret legislation in a manner consistent with a defined list of human rights. By a slim majority it also held that the Charter validly created a judicial power to "declare" a law inconsistent with one or more enumerated human rights. In reaching its decision, however, the majority supported a narrow interpretation likely to undermine the intended capacity of the Charter to act as a remedial mechanism to reform laws, regulations and administrative practices which infringe human rights and freedoms. Although Momcilovic involved interpretation of a specific State human rights law, the High Court judgments allude to significant problems should the Federal Government seek to introduce a similar charter-based human rights system. Momcilovic, therefore, represents a risk to future efforts to develop nationally consistent Australian human rights jurisprudence. This has particular relevance to health and medically related areas such as the freedom from torture and degrading and inhuman treatment and, in future, enforceable constitutional health-related human rights such as that to emergency health care.     

The design of "the first experimental study exploring DNA interpretation"

This letter explains why a recent study purporting to show that exposure to domain-irrelevant information caused DNA analysts to misinterpret a complex mixture does not warrant this conclusion on the basis of the data from the study.     

Yield and turnover of illicit indoor cannabis (Cannabis spp.) plantations in Belgium

In prosecution, Belgian judiciary currently uses outdated yield figures (28.1g per plant, sold at € 3/g at grower level) for fining illicit indoor cannabis plantations. Using state-of-the-art cultivation techniques, our growth experiments showed that yield is better expressed in g/m(2) cultivated surface area rather than in g per plant, and that yield varies significantly between different cannabis strains. It was found that the lower-bound of the one-sided 95% confidence interval of the yield of an indoor cannabis plantation can be set at 575 g/m(2). Prices and pricing mechanisms were investigated using interviews with respondents selected through snowball sampling. Results reveal that (i) the Belgian cannabis market chain is highly complex; (ii) unit prices are predominantly determined by transaction sizes; but also (iii) a set of product- and socially-related price-fixing mechanisms have an equally important role. At grower level, respondents reported prices for 1 g of dry cannabis buds to range € 3.00-4.25.     

The reasonable person standard: trading off static and dynamic efficiency

This paper compares the performance of a due care standard which is tailored to individual precaution costs to that of the reasonable person standard. This is done in a framework in which injurers can reduce their precaution costs via investment in progressing care technology. We show that the reasonable person standard may invoke better investment incentives, pointing to a potential trade-off between static and dynamic efficiency.