Article by Daniel N. Shaviro
Professor Callen's article demonstrably misinterprets my position, and thereby addresses only a fictional Shaviro, not the real one. In particular, he regards me as arguing that “a court should view itself, in a civil case, as a fiduciary choosing between possible claimants based only on the relative quality of their evidence.” He calls this my “comparative approach” and makes it the central focus of his discussion. The approach is not mine, however. I argue instead that, in a civil case, the party more likely to be correct generally should prevail—not the party that has presented better evidence. Thus, plaintiffs can present evidence that supports their being correct, and still lose on directed verdict after resting the case because the judge concludes that no reasonable jury could find that the probability of liability exceeds fifty percent—as seems obvious, for example, in the hypothetical of Fred versus the Athletic Apparel Company.
About the Author
Daniel N. Shaviro. Assistant Professor of Law, University of Chicago Law School. J.D. 1981, Yale Law School.
Citation
65 Tul. L. Rev. 499 (1991)