222. Scrutinizing Evidence feat. Frederick Schauer

We use evidence in many areas of our world: courtrooms, scientific laboratories, and legislative bodies that create policies. But the evidence in these different arenas is used in very different ways. For example, how lawyers present evidence in a courtroom varies from how historians use evidence to write about past events. 

University of Virginia law professor Frederick Schauer joins Greg to talk about the different ways we use evidence and how in some situations, we are too rigid and, in other ways, too lax when it comes to evidence. His new book, The Proof, dives into the topic of evidence and how it’s used across our society. He also shares some insights from his older book, Thinking Like A Lawyer, which lays out how people outside of the legal profession can adopt some of the mindsets lawyers do (like cross-examining ideas we already believe and questioning people we tend to automatically trust). 

Frederick Schauer is a David and Mary Harrison Distinguished Professor of Law at the University of Virginia. He has previously taught law at Harvard University and the University of Michigan. He’s written numerous books about the law, ranging from the topics of evidence, free speech, and how philosophy plays a role in the legal system. 

Episode Quotes:

Can the probabilities be reduced to numbers?

20:40: Can the probabilities be reduced to numbers? One view is by reducing them to numbers, you make something appear more certain than it actually is, but there's another view. And actually, there are distinguished judges on both sides of this debate that say, "Yes, it's hard to get it exactly right," but trying to translate very fuzzy terms, like "clear and convincing evidence," "balance of the probabilities," or "proof beyond the reasonable doubt," into numbers can clarify things, however uncertain the numbers might be. Maybe they're a bit more certain and a bit more clarifying than just using the fuzziness of language. 

05:59: To understand the law of evidence, you really have to understand exclusions. To understand the science of evidence, you have to understand inclusions—how everything might be relevant.

Law is heavily dependent on testimony

33:04: Law, except in very rare cases, doesn't do direct observation, doesn't do direct experimentation even when it could. So it relies even more heavily on what somebody has said. It's like history, but unlike a lot of science. It's unlike a lot of empirical inquiry. It's unlike a lot of experimentation.

The different view of the law in criminal law

15:26: One of the important issues in evaluating evidence is what turns on it. And if we have a criminal law model, what turns on it is that someone is going to go to prison for a long time or possibly even be executed. We are really worried about making a certain kind of mistake. And because of that, the law, especially in criminal law, has a different evaluation of false positives versus false negatives than other people.

Show Links:

Guest Profile:

• Faculty Profile at University of Virginia
• Contributor’s Profile on The Federalist Society

His Work:

• Frederick Shauer on Google Scholar
• The Proof: Uses of Evidence in Law, Politics and Everything Else
• The Force of Law
• Profiles, Probabilities, and Stereotypes 
• Thinking Like A Lawyer