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> I'm still sympathetic to the idea of examining whether we should shift the burden of proof for cases with characteristics that are systematically difficult to

by dgzl 8y ago

> I'm still sympathetic to the idea of examining whether we should shift the burden of proof for cases with characteristics that are systematically difficult to prove (not in the criminal justice system, of course; I think society-sanctioned state violence does and should have a much, much higher bar for protecting the innocent). Could you explain this? It almost sounds like you're interested in foregoing proof to decide cases where 'proof is hard'.

wutbrodo 8y ago
It's not a very well-formed idea, but it comes from the fact that I think that carefully-considered pragmatic exceptions to general rules can be valuable. For a simple example, many people don't understand what it is about markets that make them powerful[1]. That doesn't preclude any economic role for government, since markets aren't perfect and there are cases where govt action is more suited to the situation. Along the same lines, and taking a set of claims at face value: if there's an epidemic of rape and various institutions are systematically underserving victims, then it may make sense to shift that burden. I wouldn't say "forgoing" proof when proof is hard, but changing the standard of evidence. Proof isn't binary: for example, the "preponderance of evidence" and "beyond a reasonable doubt" standards for civil and criminal trials are pretty different. For a directly relevant example, I'm not very incensed by institutions cutting ties with Dr. Cosby and Harvey Weinstein despite the lack of a criminal conviction, and I don't think it's very controversial that decades of independent accusations may reasonably add up to a bit more than the initial presumed innocence. It's the formalization of this new standard (which many/most already agree to) that I'm open to. Of course, this is all theoretical. I don't think most people are remotely capable of handling even the bare minimum of nuance we're talking about here, so it's much more likely that we end up overshooting the target and doing blind damage to the concept of due process. ¯\_(ツ)_/¯ [1] I've had conversations with people on HN itself about how Uber's pricing would be more just and just as effective if they did it manually instead of using the distributed pricing system we call supply and demand
- dgzl 8y ago
  > Cosby, Weinstein I see your point now. > decades of independent accusations may reasonably add up to a bit more than the initial presumed innocence. It's the formalization of this new standard (which many/most already agree to) that I'm open to. How much is 'a bit more' then? You're essentially saying we should be allowed to substitute evidence if enough people vouch for a claim. In which case, to what degree of guilt can we attribute a person based on this metric? If the degree has any significance, how is this different than mob-rule Justice? And you're claiming many/most people already agree to this standard?
  - wutbrodo 8y ago
    I think you're taking my openness to the idea as advocacy. I don't have any stronger a belief in it than your "I see your point now" remark implies. I'm saying I'm open to the idea that there's a problem in the evidentiary standard on pragmatic grounds, and am waiting to see if the movement has any detailed suggestions for a new standard. I'm _not_ claiming that I myself have the details for this new standard, and as I already said, I tend to be a bit of classical-liberal absolutist, so it's not my preferred policy. I'm simply trying to be charitable to a viewpoint that I'm not personally a fan of; none of your questions about the details of how this would be implemented are relevant to me. > If the degree has any significance, how is this different than mob-rule Justice? As I said, I'm talking about in non-justice-system institutions. I don't see why you think the choices here are "use the same bar as criminal justice" and "mob rule". Do you think the civil case bar I mentioned is "mob-rule" justice? Given that there are bars for assigning guilt that are even more stringent than "beyond a reasonable doubt", what prevents those from being the ideal and what makes you refrain from calling BARD "mob rule"? The binary that you're framing this in is not one whose existence I accept; in fact, I don't even think it's logically consistent. > And you're claiming many/most people already agree to this standard? Yes, at an intuitive level, I think many/most people agree that Cosby and Weinstein were guilty, despite not being convictable because they don't meet the criminal justice bar (excluding the one accuser that actually was able to take Cosby to court).
    - belorn 8y ago
      > and am waiting to see if the movement has any detailed suggestions for a new standard We can actually start to evaluate those already since many have already been created in specific places and nations. Lets start with university policy and Title IX where accusation directly leading to suspension while investigation is on going. No evidence needed, and the later hearing panel that make a judgment is conducted by the school administrators and not the legal system. Is this a good system? From what I have read it has every possible problem with it, among them being that most accused students can't afford a lawyer or even staying at campus while suspended so cases usually resolve itself automatically since the accuse has to leave regardless of the merit of the case. We also get cases where A accuse B, whose friend C then accuse A, with both A and B now suspended.

by dgzl 8y ago

wutbrodo 8y ago

It's not a very well-formed idea, but it comes from the fact that I think that carefully-considered pragmatic exceptions to general rules can be valuable. For a simple example, many people don't understand what it is about markets that make them powerful[1]. That doesn't preclude any economic role for government, since markets aren't perfect and there are cases where govt action is more suited to the situation. Along the same lines, and taking a set of claims at face value: if there's an epidemic of rape and various institutions are systematically underserving victims, then it may make sense to shift that burden. I wouldn't say "forgoing" proof when proof is hard, but changing the standard of evidence. Proof isn't binary: for example, the "preponderance of evidence" and "beyond a reasonable doubt" standards for civil and criminal trials are pretty different. For a directly relevant example, I'm not very incensed by institutions cutting ties with Dr. Cosby and Harvey Weinstein despite the lack of a criminal conviction, and I don't think it's very controversial that decades of independent accusations may reasonably add up to a bit more than the initial presumed innocence. It's the formalization of this new standard (which many/most already agree to) that I'm open to. Of course, this is all theoretical. I don't think most people are remotely capable of handling even the bare minimum of nuance we're talking about here, so it's much more likely that we end up overshooting the target and doing blind damage to the concept of due process. ¯\_(ツ)_/¯ [1] I've had conversations with people on HN itself about how Uber's pricing would be more just and just as effective if they did it manually instead of using the distributed pricing system we call supply and demand

dgzl 8y ago
> Cosby, Weinstein I see your point now. > decades of independent accusations may reasonably add up to a bit more than the initial presumed innocence. It's the formalization of this new standard (which many/most already agree to) that I'm open to. How much is 'a bit more' then? You're essentially saying we should be allowed to substitute evidence if enough people vouch for a claim. In which case, to what degree of guilt can we attribute a person based on this metric? If the degree has any significance, how is this different than mob-rule Justice? And you're claiming many/most people already agree to this standard?
- wutbrodo 8y ago
  I think you're taking my openness to the idea as advocacy. I don't have any stronger a belief in it than your "I see your point now" remark implies. I'm saying I'm open to the idea that there's a problem in the evidentiary standard on pragmatic grounds, and am waiting to see if the movement has any detailed suggestions for a new standard. I'm _not_ claiming that I myself have the details for this new standard, and as I already said, I tend to be a bit of classical-liberal absolutist, so it's not my preferred policy. I'm simply trying to be charitable to a viewpoint that I'm not personally a fan of; none of your questions about the details of how this would be implemented are relevant to me. > If the degree has any significance, how is this different than mob-rule Justice? As I said, I'm talking about in non-justice-system institutions. I don't see why you think the choices here are "use the same bar as criminal justice" and "mob rule". Do you think the civil case bar I mentioned is "mob-rule" justice? Given that there are bars for assigning guilt that are even more stringent than "beyond a reasonable doubt", what prevents those from being the ideal and what makes you refrain from calling BARD "mob rule"? The binary that you're framing this in is not one whose existence I accept; in fact, I don't even think it's logically consistent. > And you're claiming many/most people already agree to this standard? Yes, at an intuitive level, I think many/most people agree that Cosby and Weinstein were guilty, despite not being convictable because they don't meet the criminal justice bar (excluding the one accuser that actually was able to take Cosby to court).
  - belorn 8y ago
    > and am waiting to see if the movement has any detailed suggestions for a new standard We can actually start to evaluate those already since many have already been created in specific places and nations. Lets start with university policy and Title IX where accusation directly leading to suspension while investigation is on going. No evidence needed, and the later hearing panel that make a judgment is conducted by the school administrators and not the legal system. Is this a good system? From what I have read it has every possible problem with it, among them being that most accused students can't afford a lawyer or even staying at campus while suspended so cases usually resolve itself automatically since the accuse has to leave regardless of the merit of the case. We also get cases where A accuse B, whose friend C then accuse A, with both A and B now suspended.