Ronald J. Allen (Northwestern University Law School) and Michael S. Pardo (Georgetown University Law Center) have published "Inference to the Best Explanation, Relative Plausibility, and Probability" on SSRN. Here is the abstract:
For over fifty years, legal proof was thought to be best understood as embodying or implementing various aspects of probability theories. These probability-based explanations neglected the extent to which explanatory considerations explain juridical proof, and a paradigm shift is now occurring from probabilistic to explanatory-based understanding of juridical proof. Similar to many scientific practices, juridical proof—from beginning to end—turns on how well the evidence would explain certain conclusions, and the legal process is structured to facilitate such an inquiry. This inferential process, well known in the philosophy of science, is referred to as abduction or “inference to the best explanation.” In this chapter, we provide an account of the process in general and an explanation-based account of juridical proof in particular—the latter, due to ecological differences between the law and other settings, deviates somewhat from the philosophical debates over IBE. We then compare the explanatory approach with probability approaches and demonstrate the decided inferiority of the latter. We conclude with the theoretical and practical consequences of the debate.
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