Note: This is my tenth blog post in a month-long series on the basics of Bayesian probability and its application to law.
I will now consider four possible scenarios or types of litigation games:
- non-random adjudication with risk-averse or ‘virtuous’ moving parties,
- non-random adjudication with risk-loving or ‘less-than-virtuous’ moving parties,
- random adjudication with risk-averse moving parties, and
- random adjudication with risk-loving moving parties.
This schema may thus be depicted in tabular form as follows:
In summary, the adjudication variable in my model refers to the reliability or screening effectiveness of the process of adjudication. Specifically, ‘non-random adjudication’ refers to litigation games that are 90% sensitive and 90% specific, an assumption based on the classic and oft-repeated legal maxim ‘it is better that ten guilty men escape than that one innocent suffer’.
Random adjudication, in contrast to non-random adjudication, occurs when litigation games are only 50% sensitive and 50% specific and thus no more reliable than the toss of a coin. As an aside, it is worth asking, why would the process of adjudication ever produce a ‘random’ outcome in the real world? One possibility is that the level of randomness or unpredictability of adjudication might be a function of the level of complexity or ambiguity of legal rules. Consider, for example, the ‘reasonable man’ standard in tort law: the more complex or ‘open-textured’ the rules of substantive and procedural law are, the more random the litigation game will be. Also, before proceeding, notice that the adjudication variable can never be 100% sensitive nor 100% specific since errors are inevitable in any process of adjudication, regardless of the litigation procedures that are in place.
In addition, the term ‘risk-averse’ or ‘virtuous’, as applied to moving parties, refers to plaintiffs and prosecutors who play the litigation game only when they are at least 90% certain that the named defendant has committed an unlawful wrongful act, while ‘risk-loving’ or ‘less-than-virtuous’ moving parties refers to plaintiffs and prosecutors who are willing to play the litigation game even when they are only 60% certain that the named defendant has committed a wrongful act. Stated colloquially, virtuous plaintiffs are civil plaintiffs who rarely file frivolous claims and criminal prosecutors who rarely abuse their discretion; by contrast, less-than-virtuous moving parties are more willing to gamble on litigation games than their more virtuous colleagues.
In my next post, I will focus on-random adjudication with risk-averse moving parties.